Lawfare - Hard National Security Choiceshttps://www.lawfareblog.com/recent
enSaudi Strike Kills 40 Children in Yemen
https://www.lawfareblog.com/saudi-strike-kills-40-children-yemen
<p><strong>Deadly Airstrike in Yemen Hits Bus Full of Children</strong></p>
<p>An airstrike carried out by the Saudi and Emirati-led coalition in Yemen struck a school bus in a crowded market in Dahyan last Thursday, <a href="https://www.aljazeera.com/news/2018/08/funerals-held-children-killed-school-bus-attack-180812074219112.html">killing 51 people</a>, including 40 children. The attack is just the latest in a long list of careless, mass-casualty strikes during the Gulf states’ three-and-a-half-year intervention in Yemen’s civil war. Saudi warplanes have frequently targeted weddings and funerals, resulting in the deaths of thousands of Yemeni civilians. “I still can’t comprehend what happened,” one woman <a href="https://www.washingtonpost.com/world/middle_east/us-allies-have-killed-thousands-of-yemenis-from-the-air-after-22-died-at-a-wedding-one-village-asks-why-us/2018/07/25/3c3e4801-164e-42ae-ac08-bec09044e52a_story.html?utm_term=.c19ba0221e54">told</a> the <em>Washington Post</em> about the strike that hit her son’s wedding in April in the town of Raqah, killing 22 people. Locals there now suffer symptoms of post-traumatic stress and sleep outside their homes for fear they will be targeted, too, despite the town remaining neutral in the conflict.</p>
<p>Before the attack last week and the bombing in Raqah, there was the bombing of a <a href="https://www.voanews.com/a/saudi-led-coalition-airstrike-kills-10-women-in-yemen/4167262.html">wedding procession</a> in Sanaa last December. Before that, the bombing of a <a href="https://www.nytimes.com/2016/10/09/world/middleeast/yemen-saudi-arabia-houthis-rebels.html">funeral</a> in Sanaa in October 2016 that killed more than 100 people, including the <a href="https://www.newyorker.com/podcast/political-scene/the-american-bombs-falling-on-yemen">mayor</a> of the capital city. That strike <a href="https://www.theguardian.com/world/2016/oct/09/saudi-arabia-investigate-air-raid-on-funeral-in-yemen">prompted</a> the Obama administration to review and <a href="http://www.slate.com/blogs/the_slatest/2016/12/14/obama_has_finally_had_enough_sort_of_of_the_war_in_yemen.html">curtail</a> the logistical support it had been providing the coalition; the reassessment, though, did not halt U.S. refueling operations and U.S. aid has been <a href="https://www.washingtonpost.com/world/national-security/trump-administration-weighs-deeper-involvement-in-yemen-war/2017/03/26/b81eecd8-0e49-11e7-9d5a-a83e627dc120_story.html?utm_term=.e9014785a97c">ramped back up</a> under the Trump administration. The Obama administration’s action was in response to what was already an apparent pattern; before that, there had been an airstrike on another wedding that killed 131 people in September 2015.</p>
<p>Throughout, Saudi officials have defended their actions. After the deaths of more than three dozen children last week, coalition officials <a href="https://www.nytimes.com/2018/08/09/world/middleeast/yemen-airstrike-school-bus-children.html">called</a> the airstrike a “legitimate military operation” that had taken out a missile launcher. U.S. officials have tried to distance themselves from the coalition’s operations. A spokesman from CENTCOM <a href="https://www.vox.com/2018/8/9/17671386/yemen-airstrikes-saudi-arabia-coalition-pentagon">told</a> <em>Vox</em> that the U.S. military does not know whether U.S. munitions were used or if U.S. planes refueled the coalition planes that carried out the strike; Gen. Joseph Votel also <a href="https://www.washingtonpost.com/world/middle_east/us-allies-have-killed-thousands-of-yemenis-from-the-air-after-22-died-at-a-wedding-one-village-asks-why-us/2018/07/25/3c3e4801-164e-42ae-ac08-bec09044e52a_story.html?utm_term=.c19ba0221e54">testified</a> to the Senate Armed Services Committee last March that the United States does not keep track of the movements or operations of the planes it refuels in support of the Saudi and Emirati air campaign. Secretary of Defense James Mattis has defended U.S. support to the Gulf coalition, <a href="https://www.reuters.com/article/us-usa-yemen-mattis/mattis-dont-restrict-u-s-support-to-saudi-led-forces-in-yemen-idUSKCN1GS00N">arguing</a> that it reduces civilian casualties, and last December <a href="https://www.washingtonpost.com/news/checkpoint/wp/2017/12/29/mattis-defends-u-s-efforts-to-prevent-civilian-casualties-in-yemen/?utm_term=.73fa6cb8b69d">complained</a> that the criticism of civilian death toll was unwarranted. “We are being held to a standard–‘we’ being us and anyone associated with us–that has never been achieved before in warfare,” he told reporters when pressed on the issue.</p>
<p>But many experts have warned that, not only are the numbers of civilian deaths exceptionally high, they are also destructive to the coalition’s goals. Michael Knights, senior fellow at the Washington Institute for Near East Policy, <a href="https://twitter.com/Mikeknightsiraq/status/1027937493306540034">wrote</a> on Twitter after last week’s strike, “I have experienced tremendous openness on the part of coalition leadership and rank/file to discuss their experience of war in Yemen, but there is a notable inability in Riyadh to face up to the counter-productiveness, the wrongness on every level, of the strategic air campaign.” Knights also called the Saudi airstrikes “a war-winner for the Huthis.” Earlier this month, Brookings’ Daniel Byman <a href="https://www.lawfareblog.com/us-yellow-light-yemen">wrote</a> here on <em>Lawfare</em> that it was past time for the United States to break off its support to the coalition, arguing that continued aid makes the U.S. military complicit in an ongoing catastrophe and enables the coalition’s misconduct of the war.</p>
<p>The exact toll of the war in Yemen is not known-a very outdated figure of 10,000 deaths is <a href="https://www.washingtonpost.com/world/the-deadly-war-in-yemen-rages-on-so-why-does-the-death-toll-stand-still-/2018/08/02/e6d9ebca-9022-11e8-ae59-01880eac5f1d_story.html?utm_term=.9cd1a1a99a23">often cited</a>, but independent estimates suggest that closer to 50,000 have died in combat, and that does not include the toll of disease and food insecurity. Yemen has also been struck by an outbreak of cholera, and <a href="https://www.lawfareblog.com/attack-humanitarian-aid-hub-yemen-appears-imminent">more than three quarters</a> of the population is reliant on food aid.</p>
<p> </p>
<p><strong>Erdogan and Trump Spar Over Sanctions and U.S. Citizen on Trial</strong></p>
<p>Tensions between the United States and Turkey escalated further last week as the Trump administration ratcheted up tariffs on steel and aluminum imported from Turkey, just days after <a href="https://www.lawfareblog.com/conditions-trumps-no-preconditions-offer-iran">imposing sanctions</a> on senior Turkish officials. Those sanctions were announced as part of U.S. government’s campaign to pressure the Turkish government to release Andrew Brunson, one of several American citizens who has been caught in Turkey’s expansive dragnet since the country’s attempted coup in July 2016. The Trump administration has been trying to negotiate Brunson’s release for months; one arrangement, in which Turkey supposedly agreed to release Brunson in exchange for Israel’s release of a Turkish citizen accused of working with Hamas, <a href="https://www.washingtonpost.com/amphtml/politics/trump-says-us-will-impose-large-sanctions-on-turkey-for-detaining-american-pastor-for-nearly-two-years/2018/07/26/75dcde32-90e5-11e8-bcd5-9d911c784c38_story.html">reportedly</a> fell through last month, and at a <a href="https://www.washingtonpost.com/world/national-security/us-and-turkish-officials-meet-to-discuss-detained-american-pastor/2018/08/08/c3e67592-9b2c-11e8-b60b-1c897f17e185_story.html?utm_term=.f9178b3d3a52">meeting</a> last week at the State Department, Turkish diplomats are said to have floated plans for another prisoner swap, this time offering to trade Brunson for Hakan Atilla, a Turkish bank official who was convicted in the United States for violating U.S. sanctions on Iran.</p>
<p>U.S. diplomats balked at the proposal, and on Friday the Trump administration announced it was doubling tariffs on steel and aluminum. Those tariffs were originally imposed to obstruct the import of cheap Chinese materials to the United States, but have also been levied on other countries with lower-priced goods, including Turkey. Trump singled Turkey out in a tweet about the increased tariffs on Friday, <a href="https://twitter.com/realDonaldTrump/status/1027899286586109955">writing</a> that he had “just authorized a doubling of Tariffs on Steel and Aluminum with respect to Turkey as their currency, the Turkish Lira, slides rapidly downward against our very strong Dollar! Aluminum will now be 20% and Steel 50%. Our relations with Turkey are not good at this time!”</p>
<p>The increased tariffs tipped the Turkish lira, which has been wobbling for months, into a sharp decline. Experts have been <a href="https://www.lawfareblog.com/iraqs-controversial-cleric-poised-win-election">warning</a> of the fragility of the Turkish economy since before Erdogan’s re-election earlier this year, and Turkish markets have been rattled by the Trump administration’s withdrawal from the Iran nuclear deal and reimposition of sanctions on one of Turkey’s close trading partners. Erdogan, though, has not taken strong measures to avert a crisis; his <a href="https://www.lawfareblog.com/new-ceasefire-assad-regime-looks-israel-syria-border">new finance minister</a> is his son-in-law, Berat Albayrak, who lacks significant experience and has attributed economic instability to a foreign conspiracy. The government has also stubbornly <a href="https://www.businessinsider.com/turkey-banking-crisis-erdogan-interest-2018-8">refused</a> to raise interest rates above the level of inflation, reducing incentives for people to keep their money in Turkish banks. The lira has lost approximately a quarter of its value since August 1 and the steep drop on Friday prompted fears of a run on Turkish banks. Albayrak <a href="https://business.financialpost.com/news/economy/turkey-tries-to-contain-crisis-takes-first-steps-to-bolster-banks-as-lira-plunges">reportedly</a> spent the weekend on an emergency tour through the Gulf to solicit large investments to stabilize the lira. “The people in charge in Ankara don’t know what they’re doing,” Jacob Funk Kirkegaard, an economist at the Peterson Institute for International Economics, bluntly told the <em>Washington Post</em>.</p>
<p>As Turkey’s financial system sputters, abetted by U.S. economic penalties, the relations between Washington and Ankara have soured further. In a speech over the weekend to members of his Justice and Development Party, Erdogan <a href="https://www.ft.com/content/b4e83b64-9d59-11e8-85da-eeb7a9ce36e4?list=intlhomepage">characterized</a> the U.S. sanctions and tariffs as “the missiles, the shots of the economic war opened against our country.” He also took to the <a href="https://www.nytimes.com/2018/08/10/opinion/turkey-erdogan-trump-crisis-sanctions.html?smtyp=cur&amp;smid=tw-nytopinion">opinion page</a> of the <em>New York Times</em> on Friday to complain that “the United States has repeatedly and consistently failed to understand and respect the Turkish people’s concerns.” Sounding a defiant note, he warned that the United States’ coercive policies could compel Ankara “to start looking for new friends and allies.” On Monday, Erdogan also <a href="https://www.washingtonpost.com/world/erdogan-calls-for-turkish-boycott-of-us-made-electronics-singling-out-apples-iphone/2018/08/14/465d3fe6-9fac-11e8-b562-1db4209bd992_story.html?utm_term=.f5320c7bd35f">called</a> for a boycott of American electronics, including the Apple iPhone.</p>
<p> </p>
<p><strong>Iraq Finalizes Election Results, but New Issues Complicate Coalition Negotiations</strong></p>
<p>Last week, Iraqi officials <a href="https://mobile.reuters.com/article/amp/idUSKBN1KV041?__twitter_impression=true">completed</a> their recount of ballots from the country’s contested May <a href="https://www.lawfareblog.com/iraqs-controversial-cleric-poised-win-election">election</a>. The new results released last Friday by the Independent High Election Commission have mostly validated the original numbers and maintained the order of results, with Muqtada al-Sadr’s list still in first, followed by the ticket backed by Hadi al-Amiri, a commander of the Shia militia movement, and Prime Minister Haider al-Abadi’s unity list in third. The only significant difference was a pick-up of one seat for Amiri’s bloc, and the outcome of the recount is not expected to affect ongoing negotiations on the formation of governing coalition. Those talks began in May and have been inconclusive so far.</p>
<p>The election recount has been a <a href="https://www.lawfareblog.com/attack-humanitarian-aid-hub-yemen-appears-imminent">contentious issue</a>: It was prompted by inconsistencies in results from Kurdish provinces, and soon after the recount was announced, a fire in a warehouse destroyed some of the ballots from Baghdad. The original electoral commission was removed and several people were arrested on charges of arson. And at the end of last month, Iraqi officials announced that the head officials at five local election offices will <a href="https://au.news.yahoo.com/iraq-try-election-officials-over-fraud-judiciary-132740319--spt.html">face charges</a> of fraud and vote buying.</p>
<p>But other issues are now also roiling Iraqi politics. Since the election, large-scale <a href="https://www.lawfareblog.com/no-grand-bargain-syria-trump-putin-summit">protests</a> in southern Iraq have raised awareness about poor infrastructure and utility provision, including unsanitary water supplies that have been strained by drought conditions. Protesters have also called out corruption and their frustration with foreign oil companies’ development of the area, which locals say has not brought economic returns to their communities. “People have lost trust in this government and the political parties,” Adnan al-Wahaili, one of the protest leaders, <a href="https://www.ft.com/content/00488e80-9970-11e8-9702-5946bae86e6d">told</a> the <em>Financial Times</em>. “They [politicians] sent a clear message, that we came not to serve you but to exploit you.” Western experts are <a href="https://www.washingtonpost.com/world/street-protests-in-iraq-could-cost-pro-american-prime-minister-his-job/2018/08/05/b2eb9254-94ce-11e8-818b-e9b7348cd87d_story.html?utm_term=.af893b7f2bee">concerned</a> that the protest movement in the south could undermine Abadi’s position in the negotiations to form a new government. Though his list placed third, there was a strong possibility that he might keep his office on account of the way he has managed to balance Iraq’s complex relationships with the United States, Iran, and Saudi Arabia, but that now appears in doubt as the protests have led Sadr to distance himself from Abadi.</p>
<p>Abadi has continued to try to walk an increasingly difficult tightrope in his foreign policy. Saudi Arabia has swept in to capitalize on the political unrest and drive a wedge between Iran and Iraq; Abadi’s government is <a href="https://www.bloomberg.com/amp/news/articles/2018-07-29/iraq-says-saudis-to-sell-it-power-at-a-fraction-of-iran-s-price?__twitter_impression=true">considering</a> an offer from Riyadh for the construction of a solar plant that would provide discounted energy to the southern regions frustrated by poor supply of electricity. Abadi’s position has also been complicated further by the reimposition of U.S. sanctions on Iran. Last week, he suggested that Iraq would abide by the U.S. sanctions on trade with Iran in order to protect its interests. "We don't support the sanctions because they are a strategic error, but we will comply with them," he said last Tuesday. But on Monday, he <a href="https://www.reuters.com/article/uk-iran-nuclear-iraq/iraq-to-respect-dollar-ban-but-not-all-u-s-sanctions-on-iran-idUSKBN1KY1Q7?feedType=RSS&amp;feedName=worldNews&amp;utm_source=Twitter&amp;utm_medium=Social&amp;utm_campaign=Feed%3A+Reuters%2FworldNews+%28Reuters+World+News%29">clarified</a> that Iraq would abide by the ban on transactions in U.S. dollars but that trade with Iran was still being reviewed. The policy has strained ties with Tehran, and over the weekend, Abadi <a href="http://www.france24.com/en/20180812-iraq-pm-cancels-visit-sanctions-hit-iran">canceled</a> plans to visit Iran for discussions on economic policy after a trip to Turkey later this week.</p>
Tue, 14 Aug 2018 16:29:43 -0400J. Dana Stuster15688Document: Judge Tatel Issues Extended Concurrence in D.C. Circuit’s Denial of En Banc Habeas Hearing
https://www.lawfareblog.com/document-judge-tatel-issues-extended-concurrence-dc-circuits-denial-en-banc-habeas-hearing
<p>On Tuesday, the U.S. Court of Appeals for the D.C. Circuit <a href="https://assets.documentcloud.org/documents/4757036/DC-Circuit-Qassim-Orders-Aug-14-2018.pdf">denied</a> a motion for an initial <em>en banc </em>hearing in<em> Qassim v. Trump. </em>Judge David Tatel issued an extended concurrence, questioning the Circuit Court’s adherence to habeas precedent. The <a href="https://assets.documentcloud.org/documents/4757036/DC-Circuit-Qassim-Orders-Aug-14-2018.pdf">full order</a>, with the concurrence, is below.</p>
<div class="DC-embed DC-embed-document DV-container" id="DV-viewer-4757036-DC-Circuit-Qassim-Orders-Aug-14-2018"> </div>
<script src="//assets.documentcloud.org/viewer/loader.js"></script><script>
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4757036-DC-Circuit-Qassim-Orders-Aug-14-2018.js", { responsive: true, container: "#DV-viewer-4757036-DC-Circuit-Qassim-Orders-Aug-14-2018" });
//--><!]]>
</script><p></p><noscript> <a href="https://assets.documentcloud.org/documents/4757036/DC-Circuit-Qassim-Orders-Aug-14-2018.pdf">DC Circuit Qassim Orders Aug 14 2018 (PDF)</a> <br /><a href="https://assets.documentcloud.org/documents/4757036/DC-Circuit-Qassim-Orders-Aug-14-2018.txt">DC Circuit Qassim Orders Aug 14 2018 (Text)</a></noscript>
Tue, 14 Aug 2018 15:18:36 -0400Matthew Kahn15687Today’s Headlines and Commentary
https://www.lawfareblog.com/todays-headlines-and-commentary-1614
<p><strong>A Special Forces soldier died Sunday following an IED attack in southern Afghanistan</strong>, <a href="https://www.nytimes.com/2018/08/13/us/politics/special-forces-soldier-killed-afghanistan.html">reports</a> the New York Times. 36-year-old Sgt. First Class Reymund Rarogal Transfiguracion of Waikoloa, Hawaii, was working alongside members of Afghanistan’s security forces in Helmand province when the bomb exploded, injuring several others. Sgt. Transfiguracion is the fifth U.S. service member to die in combat Afghanistan this year, according to the Times.</p>
<p><strong>Paul Manafort’s legal team rested its case on Tuesday morning without calling any witnesses, </strong><a href="https://www.wsj.com/articles/paul-manaforts-defense-rests-without-calling-witnesses-1534264038?mod=e2tw">said</a> the Wall Street Journal. Closing arguments are scheduled for Wednesday morning.</p>
<p><strong>President Trump signed the </strong><strong>John S. McCain National Defense Authorization Act for Fiscal Year 2019</strong><strong> (NDAA) on Monday at Fort Drum,</strong> <a href="https://www.washingtonpost.com/politics/trump-to-sign-defense-bill-named-after-one-of-his-leading-critics--john-mccain/2018/08/13/8dc4c1d8-9f07-11e8-8e87-c869fe70a721_story.html?utm_term=.5b4a65535ab0">reports</a> the Washington Post. The legislation contains a $16 billion increase in funding over the current fiscal year. Trump is facing criticism for failing to mention Republican Sen. John McCain of Arizona, the bill’s namesake, Vietnam War veteran and chairman of the Senate Armed Services Committee.</p>
<p><strong>A vehicle crash outside the British Houses of Parliament is being treated as a terrorist incident, </strong><a href="https://www.bbc.com/news/uk-45180120">writes</a> the BCC. Two people were treated at a local hospital for injuries, but have been discharged. A 29 year-old suspect, who was reportedly previously known to British counter-terrorism police, is in custody.</p>
<p><strong>A Trump-appointed district judge upheld the constitutionality of Mueller’s appointment on Monday,</strong> <a href="https://www.wsj.com/articles/fourth-judge-upholds-mueller-appointment-1534179190">according to</a> the Journal. t Judge Dabney Friedrich in the U.S. District Court of the District of Columbia, ruled that Special Counsel Robert Mueller has the authority to prosecute Concord Management, a Russian company accused of participating in the conspiracy to hack Democratic Party organizations and release the stolen information to the public. Friedrich is the fourth federal judge to uphold the Mueller appointment.</p>
<p><strong>The Israeli government has announced it will end the commercial goods blockade of the Gaza Strip if the border remains quiet</strong>, <a href="https://uk.reuters.com/article/uk-israel-egypt-gaza/israeli-minister-confirms-netanyahu-met-sisi-over-gaza-idUKKBN1KZ0N5?il=0">says</a> Reuters. The blockade was imposed last month in response to incendiary balloons launched from Gaza into Israel. Such cross-border incidents have reportedly ceased in recent days.</p>
<p align="center"><strong>ICYMI: Yesterday on <em>Lawfare</em></strong></p>
<p>Mila Versteeg <a href="https://www.lawfareblog.com/federalism-middle-east-collection-essays">kicked off</a> a week-long <em>Lawfare </em>feature on federalism in the Middle East.</p>
<p>Jeffrey Kahn <a href="https://www.lawfareblog.com/doe-v-mattis-and-right-citizens-return-united-states">explored</a> the issue of passport denials as it relates to <em>Doe v. Mattis. </em></p>
<p>Benjamin Wittes <a href="https://www.lawfareblog.com/old-olc-opinion-whether-president-can-be-subpoenaed">examined</a> a recently-released Watergate era Office of Legal Counsel opinion entitled “Presidential Amenability to Judicial Subpoenas,” and its implications for the Mueller investigation.</p>
<p>Victoria Clark and William Ford <a href="https://www.lawfareblog.com/week-will-be-214">gave</a> a summary of events in Washington this week, which may be of interest to <em>Lawfare </em>readers in this week’s “The Week That Will Be.”</p>
<p>Mikhaila Fogel <a href="https://www.lawfareblog.com/lawfare-podcast-worthwhile-canadian-dust">posted</a> this week’s edition of the <em>Lawfare Podcast</em>, in which senior editor Shannon Togawa Mercer speaks with experts about escalating diplomatic spat between Saudi Arabia and Canada.</p>
<p>Matthew Kahn <a href="https://www.lawfareblog.com/document-court-upholds-constitutionality-mueller-appointment-russian-troll-farm-case">posted</a> Judge Dabney Friedrich’s opinion affirming the constitutionality of the special counsel.</p>
<p>
<em>Email the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and </em><a href="http://www.facebook.com/Lawfareblog"><em>Facebook</em></a><em> for additional commentary on these issues. </em><a href="http://www.lawfareblog.com/lawfare-email-subscriptions/"><em>Sign up</em></a><em> to receive Lawfare in your inbox. Visit our </em><a href="http://www.lawfareblog.com/events/"><em>Events Calendar</em></a><em> to learn about upcoming national security events, and check out relevant job openings on our </em><a href="http://www.lawfareblog.com/the-lawfare-job-board/"><em>Job Board</em></a>.</p>
<p> </p>
Tue, 14 Aug 2018 14:53:51 -0400Mikhaila R. Fogel15686What’s in the New NDAA
https://www.lawfareblog.com/whats-new-ndaa
<p>President Donald Trump signed the <a href="https://www.congress.gov/115/bills/hr5515/BILLS-115hr5515enr.pdf">John S. McCain National Defense Authorization Act (NDAA) for </a><a href="https://www.congress.gov/115/bills/hr5515/BILLS-115hr5515enr.pdf">f</a><a href="https://www.congress.gov/115/bills/hr5515/BILLS-115hr5515enr.pdf">iscal year 2019</a> into law on Monday afternoon, at an event at Fort Drum military base in upstate New York. Speaking before a crowd of soldiers, Trump <a href="https://www.whitehouse.gov/briefings-statements/remarks-president-trump-signing-ceremony-h-r-5515-john-s-mccain-national-defense-authorization-act-fiscal-year-2019/">described</a> the legislation he was about to sign as follows:</p>
<blockquote><p style="margin-left:.5in;">The [NDAA] is the most significant investment in our military and our warfighters in modern history, and I am very proud to be a big, big part of it. It was not very hard. You know, I went to Congress; I said, “Let’s do it. We got to do it. We’re going to strengthen our military like never, ever before.” And that’s what we did. . . . After years of devastating cuts, we’re rebuilding our military like we never have before, ever.</p>
</blockquote>
<p>Amidst banter with the audience and references to his administration’s purported policy successes, Trump then proceeded to highlight some of the authorizations that the NDAA provides, including a pay raise for U.S. service-members and up to <a href="https://www.armed-services.senate.gov/imo/media/doc/FY19%20NDAA%20Executive%20Summary%20FINAL.pdf">$716 billion</a> in funding for new military hardware and activities. All the while, he carefully <a href="https://www.nbcnews.com/politics/politics-news/trump-snubs-mccain-fort-drum-n900316">avoided</a> any mention of the act’s namesake—Sen. John McCain (R-Az.), the chair of the Senate Armed Services Committee that manages annual NDAA negotiations in the Senate—who has frequently opposed Trump administration policies.</p>
<p>Trump is correct that the NDAA authorizes a number of substantial changes to the U.S. military as well as a significant increase in funding. Yet it is not necessarily the one-sided victory that his comments imply. Like most prior NDAAs, this year’s authorization is the product of a <a href="https://democrats-rules.house.gov/press-release/ranking-member-mcgovern-applauds-bipartisan-conference-process-ndaa-bill">relatively bipartisan</a> <a href="https://fas.org/sgp/crs/natsec/IF10515.pdf">legislative process</a> and received overwhelming bipartisan support in both the House and Senate. And while it authorizes spending levels on various activities and materiel, this does not mean that the Defense Department will have enough funding to actually pursue it. Instead, Congress will need to decide this through a <a href="https://fas.org/sgp/crs/natsec/IF10514.pdf">separate appropriations process</a> later in the fall, the results of which are not easy to <a href="https://www.defensenews.com/congress/2018/08/13/space-force-and-midterms-share-stage-as-trump-signs-pentagon-policy-bill/">foresee</a>.</p>
<p>Further, this year’s NDAA contains several provisions that the Trump administration <a href="https://www.whitehouse.gov/wp-content/uploads/2018/05/saphr5515r_20180522.pdf">actively</a> <a href="https://www.whitehouse.gov/wp-content/uploads/2018/06/saps2987s_20180626.pdf">opposed</a>. Indeed, recent NDAAs have become popular vehicles for such provisions, as they are often politically difficult (though <a href="https://www.lawfareblog.com/president-obama-vetoes-ndaa">not impossible</a>) for presidents to veto. Most of these provisions seek to constrain the Trump administration’s actions in certain areas of concern to Congress—such as engagement with Russia—by setting preconditions on certain actions or delegating relevant authority to specific executive branch officials other than the president. Others seek to strengthen and reinforce congressional oversight by requiring certain reporting and disclosures. For its part, the Trump administration—like its predecessors—has pushed back on several of these provisions by arguing that they exceed Congress’s constitutional authority and intrude on the president’s own. And in the <a href="https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-h-r-5515/">signing statement</a> that he issued in conjunction with the NDAA, Trump indicated that he intends to interpret and apply its provisions in a manner consistent with those constitutional limits.</p>
<p>Beyond the substance, one of the most notable aspects of this year’s NDAA is its timing. Since Republicans took control of the House of Representatives in 2010, the NDAA has primarily been a year-end phenomenon, with Congress holding off on a final vote well into the fall. This year, however, both the House and Senate approved the final version of the NDAA by Aug. 1, less than two weeks after it <a href="https://www.congress.gov/115/crpt/hrpt874/CRPT-115hrpt874.pdf">emerged from conference</a>. This is only the fifth time since 2006 that Congress has sent the president an NDAA to sign before the start of the new fiscal year—and the first time that Congress has done so before its August recess since 1988.</p>
<p>Several factors may have contributed to this speedy work. Congress reached a deal in February to set the overall amount of federal spending on both defense and non-defense matters for fiscal year 2019, which may have <a href="https://www.rollcall.com/news/policy/ndaa-races-congress-historic-pace">smoothed the process</a> for negotiating this year’s NDAA—though similar agreements in 2013 and 2015 did not have the same effect. Congressional Republicans have also pursued a relatively light agenda in the lead-up to the November midterm elections, which meant that fewer legislative items competed for time over the course of the summer. In effect, however, finalizing the NDAA early has allowed the Republican leadership in Congress to preserve floor time later in the year for other priorities it shares with the Trump administration—such as consideration of Supreme Court nominee Brett Kavanaugh, whose Senate hearings are scheduled to begin on Sept. 4.</p>
<p>Regardless of where it belongs on the political tally sheet, the new NDAA contains a number of provisions with major implications for U.S. national security policy. In this post, we identify several such provisions that are likely to be of particular interest to <em>Lawfare </em>readers (though we do not discuss provisions relating to research and development or the procurement of new military equipment). To place these provisions in context, we have also reviewed the <a href="https://www.congress.gov/115/crpt/hrpt874/CRPT-115hrpt874.pdf#page=835">Joint Explanatory Statement</a> that the House and Senate conferees prepared alongside the final text of the NDAA to explain their choices and identify provisions from the House and Senate versions that they omitted. Finally, we’ve also identified those provisions whose constitutionality President Trump takes issue with in his <a href="https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-h-r-2810/">signing statement</a>—a step that may give clues as to how those they are likely to be interpreted and applied in practice.</p>
<p class="rtecenter"><strong>Structural Reforms</strong></p>
<p>A stated objective of the <a href="https://armedservices.house.gov/sites/republicans.armedservices.house.gov/files/wysiwyg_uploaded/HR%205515%20Summary%20FY19%20NDAA.pdf">House</a> and <a href="https://www.armed-services.senate.gov/imo/media/doc/FY19%20NDAA%20Executive%20Summary%20FINAL.pdf">Senate</a> armed services committees in drafting the 2019 NDAA was to update U.S. military forces in order to ensure that they are prepared to address modern national security challenges. These include the possibility of a war with another major power like China or Russia, which was the major focus of the <a href="https://www.defense.gov/Portals/1/Documents/pubs/2018-National-Defense-Strategy-Summary.pdf">National Defense Strategy</a> (NDS) released earlier this year. The NDAA takes several steps toward reforming the structure of the military and civilian components of the Defense Department to facilitate such preparedness.</p>
<p>The Undersecretary of Defense for Policy is the official most directly affected by these changes. Section 902 of the NDAA expands his <a href="https://www.law.cornell.edu/uscode/text/10/134">s</a><a href="https://www.law.cornell.edu/uscode/text/10/134">tatutory responsibilities</a> to include implementation of the NDS throughout the department. Other components are tasked with reevaluating their internal processes and structures in part to refocus priorities in line with the NDA. Section 914, for example, requires the Assistant Secretary of Defense for Special Operations and Low Intensity Conflict to coordinate with the commander of U.S. Special Operations Command to assess the adequacy of special forces doctrine and processes in addressing the needs of geographic combatant commanders. And Section 901 directs the Secretary of the Navy to conduct a “comprehensive review” of its operational and administrative chains-of-command to clarify responsibilities, ensure readiness, and eliminate redundancies. The secretary is then tasked with communicating the results of this review and any resulting policy changes to relevant congressional committees within 180 days of enactment.</p>
<p>Other provisions lay the groundwork for more drastic future reforms. Specifically, Section 1075 of the NDAA instructs the Secretary of Defense to provide Congress with a comprehensive report reevaluating the highest priority missions of the Defense Department and individual armed services. The report will focus specifically on implementing the NDS and ensuring that it informs programmatic and budgetary priorities moving forward. The report will also include a comprehensive review of the roles of each armed service, as well as detailed projections regarding how future size and composition will allow each service to accomplish its highest priority missions under the NDS. This report is due to Congress in classified form with an unclassified summary a year from enactment.</p>
<p class="rtecenter"><strong>Military Personnel Reform</strong></p>
<p>As part of its efforts to promote military readiness, the NDAA authorizes a range of reforms to different aspects of U.S. military personnel policy. (<em>War on the Rocks </em>has published a <a href="https://warontherocks.com/2018/08/personnel-reform-lives-but-dont-call-it-force-of-the-future/">detailed analysis</a> of these provisions.)</p>
<p>Several provisions are aimed at enabling the military to better recruit and retain individuals with highly specialized skills. Sections 503 through 507 of the NDAA install a number of reforms intended to facilitate more merit-based promotions among military officers and avoid concerns that specialization will hinder promotion opportunities. Other provisions increase the military’s ability to recruit specialized mid-career civilians by repealing certain age restrictions (Section 501) and providing constructive service credit for relevant civilian training or experience (Section 502).</p>
<p>Other provisions work to strengthen military effectiveness by supporting military families through enhanced child care support (Sections 572 and 576) and spousal employment opportunities and support (Sections 573, 574 and 579). Relatedly, Section 575 directs the Secretary of Defense to provide a report to Congress no later than Feb. 1, 2019, on the impact that frequent changes in station have on unemployment among military spouses, and how this in turn affects military families.</p>
<p>The NDAA also contains a number of provisions addressing domestic violence and sexual assault within the military. The most notable such provision is Section 532, which makes domestic violence an offense under the <a href="https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-II/chapter-47">Uniform Code of Military Justice</a>. Another provision (Section 536) requires the Secretary of Defense to establish standard procedures for expedited transfer for service-members who are victims of sexual assault or physical domestic violence. Others require the creation of sexual assault resource guides for service academies (Section 545) and assessments of how often sexual assault victims face accusations of misconduct or adverse career actions (Section 547).</p>
<p class="rtecenter"><strong>War Powers and the Use of Military Force</strong></p>
<p>Unsurprisingly given its focus on national defense, the NDAA contains a number of provisions relating to the use of military force.</p>
<p>Perhaps the most notable change to existing operational authorities is an expansion of reporting requirements related to “sensitive military operations.” Section 1031 of the NDAA amends <a href="https://www.law.cornell.edu/uscode/text/10/130f">existing statutory provisions</a> that obligate the Defense Department to report “sensitive military operations” to congressional committees by redefining that term to encompass any lethal or capture operations targeting specific individuals—whether conducted by U.S. armed forces or by foreign armed forces in coordination with U.S. armed forces—as well as operations conducted by U.S. armed forces in self-defense or in defense of foreign partners, except where such operations occur in Afghanistan, Iraq or Syria. In addition, within 30 days of enactment, it requires that the secretary of defense provide Congress with a list of all the instances that would have qualified for such reporting under this new definition dating to 2013, when the reporting requirement was first enacted, effectively rendering this amendment retroactive.</p>
<p>Separately, Section 1031 also installs new reporting requirements for military action taken in defense of foreign partner forces. Such “collective self-defense” has occurred with non-state actors in <a href="https://www.nytimes.com/2016/03/15/us/politics/is-the-us-now-at-war-with-the-shabab-not-exactly.html?_r=1">Somalia</a> and <a href="https://assets.documentcloud.org/documents/4411804/3-18-War-Powers-Transparency-Report.pdf">Syria</a> in recent years and has been criticized for inadequate reporting. The NDAA addresses this by requiring that the secretary of defense provide a report that identifies all foreign partner forces that qualify for collective self-defense within 30 days of enactment and requiring that the secretary inform Congress within 48 hours whenever he determines that additional foreign partner forces are eligible. Once again, these requirements do not apply to partner forces in Afghanistan, Iraq and Syria.</p>
<p>Other provisions in the NDAA address civilian casualties resulting from U.S. military operations, which has been an issue of ongoing concern. (Rita Siemion has a <a href="https://www.justsecurity.org/59695/important-civilian-casualties-provisions-congressional-bill-national-defense-authorization-act/">useful discussion</a> of these provisions at <em>Just Security</em>.) Section 936 directs the secretary of defense to make a senior civilian official at the assistant secretary level or higher responsible for developing uniform processes and standards for calculating, acknowledging and accepting responsibility for civilian casualties throughout the armed services, including through coordination with private individuals and nongovernmental organizations. It requires that the designated official report on the development and implementation of these policies within 180 days of enactment. Notably, in his <a href="https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-h-r-5515/">signing statement</a>, Trump objected that this provision “purport[s] to restrict the President’s authority to control the personnel and materiel the President believes to be necessary or advisable for the successful conduct of military missions” and would be interpreted consistent with “the President’s authority as Commander in Chief.” Section 1062, meanwhile, amends an annual reporting requirement from the 2018 NDAA to require the public disclosure of more incident-specific and detailed information on civilian casualties, a criticism of this past year’s <a href="https://www.justsecurity.org/57718/department-defenses-report-civilian-casualties-step-transparency/">report</a>.</p>
<p>Like several recent NDAAs, this year’s authorization contains several restrictions on how the executive branch may manage the detention and military commission facilities and operations at Guantanamo Bay. Specific provisions prohibit the use of any funds for closing the Guantanamo Bay facility (Section 1032); transferring Khalid Sheikh Mohammed or any other detainees who are not U.S. citizens or members of the U.S. military held at Guantanamo Bay to the United States (Section 1033); constructing or modifying facilities in the United States to house any transferred detainees (Section 1034); or transferring any detainees to Libya, Somalia, Syria or Yemen (Section 1035). Notably, in his <a href="https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-h-r-2810/">signing statement</a>, President Trump has followed President Obama’s lead in objecting to the constitutionality of several of these restrictions, even though he indicates that he “fully intend[s] to keep open th[e] detention facility and to use it for detention operations.” Also notable, the final version <a href="https://docs.house.gov/billsthisweek/20180723/CRPT-115hrpt863.pdf#page=2107">omitted</a> a provision that had been included in the Senate version of the NDAA that would have allowed for the temporary transfer of detainees to the United States for emergency or critical medical treatment.</p>
<p>This NDAA also includes a rule of construction regarding the use of force. Specifically, Section 1295 states that “[n]othing in this Act may be construed to authorize the use of force against Iran or North Korea,” reflecting some apparent anxiety among lawmakers that the Trump administration might try to cite the NDAA as legal authorization for such action. While this provision was included in the final version, several related provisions from the House version of the NDAA were omitted, including one that would have expressed the sense of Congress that neither the NDAA nor any other enacted legislation provides statutory authorization for the use of military force against Iran. That said, the Joint Explanatory Statement approved by Congress includes a <a href="https://docs.house.gov/billsthisweek/20180723/CRPT-115hrpt863.pdf#page=2175">statement</a> that “the conferees are not aware of any information that would justify the use of military force against Iran under any other statutory authority.”</p>
<p>Finally, while the statutory text of the NDAA does not contain any new reporting requirements regarding the use of military force, the Joint Explanatory Statement does. Specifically, it <a href="https://docs.house.gov/billsthisweek/20180723/CRPT-115hrpt863.pdf#page=2199">directs</a> the secretary of defense to provide Congress with a report that identifies the nations, organizations and persons against which the United States has taken military action under the 2001 Authorization for Use of Military Force. The executive branch generally complies with such directives as a matter of policy, though they are not considered legally binding.</p>
<p class="rtecenter"><strong>Security Assistance and Cooperation</strong></p>
<p>Continuing a trend across recent NDAAs, this year’s authorization tweaks a number of broad authorizations that allow the secretary of defense—often in coordination with the secretary of state—to exercise substantial discretion in pursuing security assistance and cooperation activities, including efforts to <a href="https://www.law.cornell.edu/uscode/text/10/333">build the capacity</a> of partner forces (Section 1201), to <a href="https://www.law.cornell.edu/uscode/text/10/332">embed</a> Defense Department personnel within their military bureaucracies (Section 1202) and to <a href="https://www.law.cornell.edu/uscode/text/10/331">support</a> their conduct of operations (Section 1203). Section 1211 also provides funds for the <a href="https://www.law.cornell.edu/uscode/text/10/383">monitoring and evaluation</a> of security cooperation activities, though it withholds half until a related report is provided to Congress. And Section 1213 expands a <a href="https://www.law.cornell.edu/uscode/text/22/2151">program</a> that provides assistance to certain allied countries’ border security efforts to include Egypt, Jordan, Lebanon, Oman, Pakistan and Tunisia; it also installs new reporting requirements.</p>
<p>Other provisions, however, impose new restrictions or disclosure requirements on existing security assistance and cooperation authorities, likely reflecting concerns in Congress about how such authorities are being used.</p>
<p>Section 1205 directs the secretaries of defense and state to review the processes used to implement <a href="https://www.law.cornell.edu/uscode/text/10/362">existing requirements</a> that no assistance be provided to units that have committed gross human rights violations (one of two provisions commonly referred to as “<a href="https://fas.org/sgp/crs/row/R43361.pdf">Leahy laws</a>”) and to update Congress within 180 days of enactment. Among other items, this report is intended to assess the efficacy of those procedures, what negative impact they may have on security assistance and cooperation efforts, and any reform proposals.</p>
<p>Section 1212 similarly directs a thorough audit of advise, assist and accompany missions—the type of mission that U.S. special forces <a href="https://www.kaine.senate.gov/press-releases/in-wake-of-niger-report-kaine-calls-on-dod-to-provide-details-on-advise-and-assist-missions">were conducting</a> in Niger in October 2017 when several members came under fire and were killed. Specifically, Section 1212 directs Defense Department personnel to provide the secretary of defense with a review of the legal and policy frameworks for such missions within 120 days of enactment. The secretary is then obligated to provide this report—which is supposed to be unclassified, though it may include a classified appendix—to relevant congressional committees alongside any comments or related proposals within 30 days.</p>
<p>Section 1271, meanwhile, revises <a href="https://www.law.cornell.edu/uscode/text/10/2342">existing authorities</a> for the use of <a href="https://www.acq.osd.mil/ic/ACSA.html">acquisition and cross-servicing agreements</a> (ACSAs), a type of international agreement that the Defense Department <a href="https://www.acq.osd.mil/ic/ACSA.html">uses</a> to share certain equipment and supplies with select allied militaries. Section 1271 installs a new limitation barring the secretary of defense from using an ACSA with an ally to transfer equipment or supplies through that ally to a third party that does not meet the legal requirements for its own ACSA. In addition, it establishes an annual reporting requirement obligating the Defense Department to disclose how it has used each agreement over the prior year. This likely reflects <a href="https://www.tomudall.senate.gov/news/press-releases/senators-seek-congressional-oversight-transparency-regarding-dod-assistance-in-yemen">concerns</a> with how ACSAs are being used to provide support to members of the Saudi-led coalition in Yemen. Trump’s <a href="https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-h-r-2810/">signing statement</a>, however, raises constitutional concerns with this provision and indicates that the executive branch will apply it consistent with the president’s constitutional authority over diplomacy.</p>
<p class="rtecenter"><strong>Cyber Operations and Artificial Intelligence</strong></p>
<p>Several provisions of the NDAA address military cyber operations, which Bobby Chesney previously <a href="https://www.lawfareblog.com/law-military-cyber-operations-and-new-ndaa">analyzed</a> for <em>Lawfare</em>. Most serve to clarify or organize existing authorities, but a few install substantial changes. Perhaps most notably, Section 1642 authorizes relevant components of the Defense Department to respond to identified cyber attacks by China, Iran, North Korea and Russia with proportional cyber operations in order to disrupt, defeat and deter future such attacks.</p>
<p>The NDAA also addresses the development of artificial intelligence technology as it relates to national security. Section 238 directs the Secretary of Defense to develop a plan for and pursue a number of activities related to artificial intelligence, including research and development and analysis of potential regulation. Section 1051, meanwhile, establishes a National Security Commission on Artificial Intelligence as an <a href="https://www.law.cornell.edu/uscode/text/5/104">independent establishment</a> within the federal government for approximately two years, until Oct. 1, 2020. The Commission—which is to consist of fifteen members, twelve of whom are appointed by Congress and three of whom are appointed by the executive branch—is tasked with reviewing the full range of national security issues raised by artificial intelligence and machine learning, as well as ways that the United States can best harness it. The Commission must then report back to Congress on these findings on an annual basis, as well as in an interim report 180 days after the NDAA's enactment.</p>
<p class="rtecenter"><strong>Foreign Investment and Trade Restrictions</strong></p>
<p>Several provisions of the NDAA address U.S. legal restrictions on various forms of foreign commerce that may impact national security, including foreign investment in the United States and exports of strategic significance.</p>
<p>The most notable of these provisions is arguably the Foreign Investment Risk Review Modernization Act (FIRRMA) of 2018, which begins at Section 1701. As Stephanie Zable wrote in her <a href="https://www.lawfareblog.com/foreign-investment-risk-review-modernization-act-2018">detailed analysis</a> for <em>Lawfare</em>, FIRRMA introduces major reforms to the Committee on Foreign Investment in the United States process used to review and, if necessary, restrict foreign investments for national security concerns.</p>
<p>The NDAA also contains the Export Controls Reform Act (ECRA) of 2018, which begins at Section 1751 and consists of two parts: the Export Controls Act of 2018 and the Anti-Boycott Act of 2018. As explained in the NDAA’s Joint Explanatory Statement, the ECRA replaces the defunct Export Administration Act, which lapsed in 1994. Since that time, successive presidents have operated the U.S. system of export controls (as well as related anti-boycott policies) through the Commerce Department under a series of executive orders pursuant to the <a href="https://www.law.cornell.edu/uscode/text/50/chapter-35">International Emergency Economic Powers Act</a>. The ECRA maintains the status quo by providing new statutory authority for the Commerce Department’s existing activities. The most substantial change of note is in Section 1758, which directs the establishment of new export controls for “emerging and foundational technologies” identified as essential to U.S. national security by an interagency committee.</p>
<p>Section 889 of the NDAA would also prohibit executive-branch agencies from procuring or contracting for certain covered telecommunications equipment or services from companies that are associated with or believed to be owned or controlled by the People’s Republic of China. This includes <a href="https://foreignpolicy.com/2018/07/25/congress-caves-to-trump-in-fight-over-chinas-zte/">ZTE</a> and <a href="https://www.theverge.com/2018/2/14/17011246/huawei-phones-safe-us-intelligence-chief-fears">Huawei</a>, two companies whose activities in the United States have been the subject of great scrutiny in recent months. This prohibition would begin for executive-branch agencies one year after enactment of the NDAA and would extend to the beneficiaries of any grants, loans or subsidies from such agencies two years after enactment. Under this provision, the head of any federal agency may issue a onetime waiver for up to two years, while only the director of national intelligence may issue subsequent waivers. Notably, however, the NDAA does <a href="https://docs.house.gov/billsthisweek/20180723/CRPT-115hrpt863.pdf#page=2056">not include</a> a provision from the Senate version of the NDAA that would have reimposed the penalties against ZTE that the Commerce Department controversially revoked earlier this year.</p>
<p class="rtecenter"><strong>Addressing Foreign Influence Operations</strong></p>
<p>In an apparent response to Russian interference in the 2016 presidential election and related measures, the NDAA contains several provisions that direct the executive branch to take steps to counter foreign influence operations.</p>
<p>Section 1043 formally amends the <a href="https://www.law.cornell.edu/uscode/text/50/3021">statutory functions</a> of the National Security Council to include coordinating the U.S. government response to malign foreign influence operations and campaigns. It also directs the president to designate an NSC official who will be responsible for these efforts within 180 days of enactment. This individual is responsible for testifying before Congress on these issues at least twice a year. In addition, Section 1043 directs the NSC to provide relevant congressional committees with a strategy for achieving this objective within nine months of enactment.</p>
<p>Relatedly, Section 1085 amends existing rules governing foreign media outlets that operate in the United States, imposing registration requirements on them that resemble those required of foreign agents under the <a href="https://www.law.cornell.edu/uscode/text/22/chapter-11/subchapter-II">Foreign Agents Registration Act</a> (FARA). Specifically, within 60 days of enactment and every six months thereafter, any foreign media outlet operating in the United States—defined as any producer of video content that would qualify as the “agent of a foreign principal” <a href="https://www.law.cornell.edu/uscode/text/22/611">under FARA</a> if not for the exception for press organizations—must file a report with the Federal Communications Commission (FCC) identifying itself and describing its relationship to its foreign principal, which may be a foreign government, organization or individual. The FCC is required to make these reports publicly available and to report on them to Congress every six months.</p>
<p class="rtecenter"><strong>Nuclear Weapons and Missile Defense</strong></p>
<p>Consistent with the recent Nuclear Posture Review (NPR) that the Trump administration released earlier this year—whose conclusions the NDAA endorses in a sense of Congress provision (Section 1673)—the NDAA authorizes several actions that would fortify or expand upon the U.S. nuclear arsenal. Arguably the most significant (and controversial) of these provisions is Section 3111, which authorizes the Secretary of Energy to develop low-yield nuclear weapons capable of more tactical use and deterrence, as called for by the NPR. Section 1663 similarly seeks to accelerate programs to develop both a ground-based strategic deterrent and long-range standoff weapons. And Section 1665 prohibits the Defense Department from reducing the number of intercontinental ballistic missiles the United States has deployed below 400 or related responsiveness or alertness levels, except where necessary for maintenance or safety reasons. Significantly, President Trump objected to this latter restriction in his <a href="https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-h-r-5515/">signing statement</a> as interfering with his constitutional authority as commander-in-chief.</p>
<p>Other provisions address potential weaknesses in the current command-and-control system used to govern the use of nuclear weapons. Section 1668 directs the Secretary of Defense to develop a plan for better training service members in nuclear command and control in order to develop “a mature cadre of officers with nuclear command, control, and communications expertise” within 180 days of enactment, and to implement that plan within 18 months. Relatedly, Section 1669 directs the Secretary of Defense to procure an independent study on the potential benefits and risks associated with different options for increasing the amount of time that the president has to decide whether to use nuclear weapons in response to a given incident. This report is to be due to the Defense Department within 270 days of enactment and communicated to Congress alongside any comments or recommendations from the Secretary of Defense 30 days later.</p>
<p>Finally, Section 3122 specifically prohibits any use of funds to enter into a contract with or provide assistance to Russia relating to atomic energy defense activities. This restriction may be waived by the Secretary of Energy, with concurrence from the Secretary of Defense and Secretary of State, if the secretaries determine such action would be in the U.S. national security interest and explains this reasoning to relevant congressional committees at least seven days before initiating the program. That said, this restriction does not apply to up to $3 million that the Secretary of Energy may make available for the Department of Energy’s Russian Health Studies Program.</p>
<p>Other provisions deal with the related topic of missile defense, the further development of which the NDAA endorses as a matter of policy. Section 1675 amends <a href="https://www.law.cornell.edu/uscode/text/10/2431">existing authorities</a> to direct the Defense Department to begin development of a missile defense system. That said, it withholds a portion of associated funds until the Defense Department provides Congress with a <a href="https://www.law.cornell.edu/uscode/text/10/2431">previously-requested</a> report on how it intends to develop and deploy such a system. Sections 1676 and 1680, meanwhile, do much the same with <a href="https://www.law.cornell.edu/uscode/text/10/2431">existing authorities</a> related to boost phase intercept capabilities and a space-based ballistic missile intercept layer, authorizing the development of both subject to appropriations.</p>
<p class="rtecenter"><strong>Space Warfighting</strong></p>
<p>As President Trump noted in his <a href="https://www.whitehouse.gov/briefings-statements/remarks-president-trump-signing-ceremony-h-r-5515-john-s-mccain-national-defense-authorization-act-fiscal-year-2019/">remarks</a> at Fort Drum, the NDAA includes a number of provisions intended to expand U.S. warfighting capabilities in outer space—though they fall far short of the controversial “<a href="https://www.washingtonpost.com/business/economy/pence-details-plan-for-creation-of-space-force-in-what-would-be-the-sixth-branch-of-the-military/2018/08/09/0b40b8d0-9bdc-11e8-8d5e-c6c594024954_story.html?utm_term=.5ec86a3cda3e">space force</a>” proposal his administration has put forward.</p>
<p>The most notable of these space-related provisions is Section 1601, which amends <a href="https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-I/chapter-6">existing authorities</a> to establish a subordinate unified command under the auspices of U.S. Strategic Command. This command is responsible for coordinating and directing military activities in relation to outer space across the different military services, in the same manner as the geographic commands.</p>
<p>Section 1607 in turn directs the Secretary of Defense to develop a “space warfighting policy” that will assess U.S. capabilities and identify potential threats over the next ten years in outer space. This report is due to Congress in unclassified form (with a classified annex) by March 29, 2019. The Secretary of Defense is also required to brief relevant congressional committees at that point on request. Afterwards, the secretary is to develop and begin implementing a plan to improve U.S. space warfighting readiness, including by identifying necessary additional authorities and considering possible contributions by strategic partners. Trump once again objected to this provision on constitutional grounds in his <a href="https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-h-r-2810/">signing statement</a>, contending that it treads on his constitutional authority over U.S. foreign policy.</p>
<p class="rtecenter"><strong>Specific Geographic Theaters</strong></p>
<p>As with prior NDAAs, this year’s authorization contains several provisions related to specific foreign countries or geographical areas. Below are a few that are particularly notable.</p>
<p class="rtecenter"><strong><em>Iraq and Syria</em></strong></p>
<p>The NDAA extends several existing assistance authorities related to Iraq and Syria, including those for the train-and-equip program for “vetted Syrian opposition” (Section 1231), assistance for Iraq to counter the Islamic State (Section 1233), and the Office of Security Cooperation in Iraq (Section 1235). In several cases, it makes these funds contingent on the provision of reports regarding the U.S. strategy in Iraq and Syria that were requested in prior NDAAs and never provided. In addition, several of these provisions require additional or supplemental reports to Congress, including quarterly progress reports. Trump questions the constitutionality of several of these restrictions in his <a href="https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-h-r-2810/">signing statement</a>.</p>
<p>The NDAA also addresses the question of accountability for war crimes in Syria. Section 1232 directs the secretary of state to prepare a report describing possible occurrences of war crimes, crimes against humanity and genocide committed by the Assad regime, forces fighting on its behalf, or nongovernmental forces, as well as an assessment of steps the United States has taken to ensure that evidence and other relevant information is available for future transitional justice processes. Further, it requires the secretary of state to submit another such report within 180 days of determining that “the violence in Syria has ceased,” thereby capturing incidents over the whole course of the conflict. Once again, Trump raises constitutional concerns with this provision in his <a href="https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-h-r-2810/">signing statement</a>, and indicates that he will apply it in line with his constitutional authority over foreign affairs.</p>
<p class="rtecenter"><strong><em>Russian Federation</em></strong></p>
<p>Other NDAA provisions are intended to shape the U.S. relationship with Russia. Some impose or threaten sanctions for certain Russian actions. Others restrict the Trump administration’s ability to engage with Russia, reflecting some congressional anxiety about President Trump’s relationship with Russian President Vladimir Putin.</p>
<p>Section 1241 prohibits the Defense Department from using funds for any activity that recognizes the sovereignty of the Russian Federation over Crimea. To overcome this prohibition, the secretary of defense and secretary of state must issue a waiver determining that doing so is in the U.S. national security interest and must provide relevant congressional committees with their justification.</p>
<p>Section 1242 prohibits the Air Force from using certain funds intended to bring the United States into compliance with the Treaty on Open Skies—a multilateral treaty that authorizes reciprocal overflights to verify progress on counterproliferation objectives—until the president or the secretary of state certifies that the United States has responded to perceived Russian violations and informs Congress. It also prohibits the United States from using any funds to implement any multilateral decision to use certain types of surveillance technology unless and until relevant U.S. officials certify at least 90 days in advance that the Russian Federation is in full compliance with that treaty. The latter requirement, however, may be waived provided that the president reports to Congress at least 30 days in advance that doing so is in the U.S. national security interest and that the Russian Federation has taken “clear and verifiable action” to return to compliance.</p>
<p>Two other provisions of the NDAA similarly address Russia’s alleged violation of the Intermediate-Range Nuclear Forces (INF) Treaty. Section 1243 requires the president to provide relevant congressional committees with a determination as to whether Russia is in material breach of its treaty obligations and, as a result, whether related treaty prohibitions on the production and testing of shorter- and intermediate-range missiles remain binding on the United States. Section 1244 then expresses the sense of Congress that Russia’s violations of the INF Treaty entitle the United States to suspend its operation and requires that the president inform Congress whether he has implemented certain sanctions and related measures authorized by last year’s NDAA against individuals and entities who have contributed to Russia’s treaty violations by Nov. 1, 2018. In his <a href="https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-h-r-2810/">signing statement</a>, however, Trump objects to this provision on constitutional grounds and indicates that he will limit his interpretation of it accordingly.</p>
<p>Section 1245 requires the president to report to relevant congressional committees whether he has engaged the Russian government on whether it considers certain weapons systems to be “strategic offensive arms” subject to limitations under the New START Treaty and whether their position impacts the viability of that treaty or requires additional U.S. responses. Again, this provision earns Trump’s ire in his <a href="https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-h-r-2810/">signing statement</a>, specifically interfering with his “constitutional authority to identify breaches of international agreements by counterparties.”.</p>
<p>Section 1246 further extends security assistance for Ukraine originally provided in the 2016 NDAA. Perhaps most notably, it provides $250 million in assistance, of which $50 million is designated specifically for lethal assistance.</p>
<p>Finally, Section 1247 extends a much-discussed prohibition imposed in the fiscal 2018 NDAA that prohibits the use of funds for any military cooperation with Russia. However, it installs a new rule indicating that this prohibition is not meant to limit military-to-military dialogue aimed at reducing the risk of conflict. This effectively codifies an interpretation that the Trump administration adopted following the last NDAA that, among other activities, allows U.S. and Russian forces to deconflict their operations in Syria. Trump’s signing statement indicates that this limit may be constitutionally suspect in certain circumstances, and indicates that he intends to apply this provision consistent with his “exclusive constitutional authorities as Commander in Chief and as the sole representative of the Nation in foreign affairs.”</p>
<p class="rtecenter"><strong><em>NATO</em></strong></p>
<p>As a corollary to provisions relating to Russia, the NDAA also addresses the U.S. relationship with NATO, which President Trump’s open skepticism has recently brought into question. Through a strongly worded “statement of policy,” Section 1248 expresses support for the United States’ “ironclad commitment” to fulfilling its obligations under NATO and using “all element of United States national power to deter and, if necessary, defeat Russian aggression.” It then expresses the sense of Congress that the United States should continue to pursue and even expand upon an array of measures intended to ensure effective coordination and interoperability. Perhaps most notably, it also expresses support for NATO’s “open door” policy, including the eventual membership of Georgia in NATO—a step that Russian officials have <a href="https://www.independent.co.uk/news/world/europe/russia-georgia-nato-war-conflict-dmitry-medvedev-south-ossetia-a8481901.html">said</a> could have “extremely grave consequences.”</p>
<p class="rtecenter"><strong><em>China</em></strong></p>
<p>Unsurprisingly, the NDAA contains several provisions relating to the United States’ other major strategic rival: the People’s Republic of China. While it requires reports on Chinese military and security developments (Section 1260) and the U.S. strategy toward China (Section 1261), U.S. relations with Hong Kong (Section 1256), and strategies for improving Taiwan’s military readiness (Section 1257), the NDAA’s primary focus is on Beijing’s controversial activities in the South China Sea. Section 1259 prohibits the secretary of defense from involving China in any Rim of the Pacific (RIMPAC) naval exercises until he is able to certify to relevant congressional committees that China has ceased its land reclamation and related military activities for at least a four-year period. (Notably, however, Trump’s <a href="https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-h-r-5515/">signing statement</a> objects to this limitation on constitutional grounds.) Similarly, Section 1262 requires the secretaries of defense and state to name-and-shame China by reporting any significant Chinese reclamation activity, territorial claims, or militarization in the South China Sea to relevant congressional committees and releasing the unclassified core of that report to the public. That said, both of these requirements may be waived so long as relevant U.S. officials determine that doing so is in the U.S. national interest and provide a justification to Congress.</p>
<p class="rtecenter"><strong><em>North Korea</em></strong></p>
<p>Several provisions in the NDAA address North Korea. They seem primarily intended to set constraints on—and verify the results of—the Trump administration’s ongoing negotiations with the Kim Jong Un regime.</p>
<p>Section 1264 prohibits the Defense Department from using any funds to reduce the number of active-duty members of the U.S. armed forces in North Korea below 22,000—an apparent response to rumors that the Trump administration has considered reducing U.S. force levels in South Korea, either as a result of negotiations with North Korea or to pressure South Korea in ongoing trade negotiations. Section 1264 provides that this limitation may be waived only if the secretary of defense certifies to Congress that this reduction is in the U.S. national security interest; that it would not significantly undermine the security of U.S. allies in the region; and that it has been appropriately consulted with those allies, including South Korea and Japan. The <a href="https://docs.house.gov/billsthisweek/20180723/CRPT-115hrpt863.pdf#page=2153">Joint Explanatory Statement</a> elaborates on Congress’s reasoning, stating that the conferees “support diplomatic efforts to achieve the complete, verifiable, and irreversible denuclearization” of North Korea but believe that “the significant removal of [U.S.] military forces from the Korean Peninsula is a non-negotiable item in such negotiations.” Trump’s <a href="https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-h-r-5515/">signing statement</a>, however, objects that this provision may intrude upon his constitutional authority over the military and foreign affairs in some circumstances, and that he intends to interpret it accordingly.</p>
<p>In addition, Section 1265 establishes certain reporting requirements that would allow Congress to verify any Trump administration claims that the Kim Jong Un regime is making progress toward denuclearization. To “establish a baseline of progress for negotiations,” it requires the secretary of defense, in coordination with select other Cabinet officials, to submit a detailed report to Congress on the status of North Korea’s weapons of mass destruction and ballistic missile programs within 60 days of enactment. The report must then be updated every 180 days. Alternatively, if a formal agreement is reached with North Korea, then an update is instead due within 60 days of that agreement and every 90 days thereafter, allowing Congress to verify compliance.</p>
<p class="rtecenter"><strong><em>Turkey</em></strong></p>
<p>In light of <a href="https://www.voanews.com/a/turkey-to-freeze-assets-of-2-us-officials-as-retaliation/4513593.html">recent tensions</a> with Turkey, Section 1282 instructs the secretaries of defense and state to submit a report on U.S.-Turkish relations to Congress within 90 days of enactment. This is to include an analysis of Turkey's purchase of Russian military equipment and potential alternatives it could procure from NATO member states. Until this report is completed, Section 1282 prohibits the Defense Department from delivering any F-35 aircraft to Turkey, a number of which Turkey was already in the process of procuring.</p>
<p class="rtecenter"><strong><em>Yemen</em></strong></p>
<p>Finally, several provisions address the ongoing conflict in Yemen. U.S. support for the Saudi-led coalition perpetrating that conflict has proven increasingly controversial and been the subject of repeated activity in Congress. The NDAA reflects and attempts to address some of those concerns.</p>
<p>Section 1274 directs the secretary of defense to conduct a review to determine whether U.S. armed forces or coalition partners have violated U.S. federal law, the laws of armed conflict or Defense Department policy while conducting operations in Yemen. Among other topics, it specifically seeks findings on whether U.S. armed forces have participated in interrogations in Yemen—including by providing questions to interlocutors—or whether any foreign military groups have received assistance in violation of (or required a waiver from) <a href="https://www.law.cornell.edu/uscode/text/10/362">existing laws</a> barring the Defense Department from providing assistance to any perpetrators of gross human rights violations. After this review—and within 120 days of the NDAA’s enactment—the defense secretary must then submit a report to relevant congressional committees describing the results, analyzing the extent of U.S. responsibility for detainee abuses under domestic and international law, and assessing the adequacy of relevant policies.</p>
<p>Section 1290, meanwhile, requires the secretary of state to certify, within 30 days of the NDAA’s enactment and biannually thereafter, that the United Arab Emirates and Saudi Arabia are undertaking “urgent and good faith” efforts to support a diplomatic end to the civil war in Yemen; pursuing appropriate measures to alleviate humanitarian conditions there; reducing the risk of harm to civilians from military operations; and—in the case of Saudi Arabia—taking appropriate actions to reduce delays in shipments related to secondary inspect and clearance processes beyond those implemented by the United Nations. If the secretary cannot make this certification, then Section 1290 prohibits the use of funds for in-flight refueling services for the Saudi-led coalition in Yemen for purposes other than targeting al-Qaeda and the Islamic State, countering ballistic missile programs in Yemen, helping coalition aircraft return safely to base in emergency situations, providing force protection for U.S. forces, or ensuring freedom of navigation. This prohibition may be waived, however, if the secretary of state certifies that it is in the U.S. national security interest and submits an unclassified written report describing why he could not issue the required certification. Once again, Trump objects to this provision’s constitutionality in his <a href="https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-h-r-5515/">signing statement</a>, arguing that it may interfere with his constitutional authority over foreign affairs and the military in at least some circumstances.</p>
<p class="rtecenter"><strong>Reporting Requirements</strong></p>
<p>Finally, the NDAA omits a provision that may have been of particular interest to rank-and-file personnel at the Defense Department: a mandatory sunset of three years for reporting requirements of indefinite duration. Countless reporting requirements such as these have accumulated through recent NDAAs and other legislation. Many often go unfulfilled, in part because of the burden doing so would place on existing personnel and resources. While the final NDAA does not contain this sunset, the Joint Explanatory Statement does <a href="https://www.congress.gov/115/crpt/hrpt874/CRPT-115hrpt874.pdf#page=998">direct</a> the Secretary of Defense to provide a report to Congress identifying those reporting requirements he believes are over-burdensome or redundant by April 1, 2019. This in turn may be a step towards streamlining and rationalizing these reporting requirements.</p>
Tue, 14 Aug 2018 12:25:06 -0400Scott R. Anderson, Sarah Tate Chambers, Molly E. Reynolds15685Why the White House Can’t Stop Omarosa Manigault-Newman From Talking
https://www.lawfareblog.com/why-white-house-cant-stop-omarosa-manigault-newman-talking
<p><span id="docs-internal-guid-3a537aa1-7fff-2dfa-3e23-b9b3533b66e1">The ongoing publicity tour by former senior White House staffer Omarosa Manigault-Newman, once designated as one of the “</span><a href="https://en.wikipedia.org/wiki/Omarosa_Manigault#cite_note-8">nastiest TV villains of all time</a>,” is the culmination of the questionable hiring choices made during the early days of the Trump White House. <span id="docs-internal-guid-d55c35b6-7fff-38e7-1b21-4e1b3c999c75">Manigault-Newman has made a media splash by releasing multiple secret audio recordings of the president and his associates, some of which were made during her time at the White House—and one of which was reportedly conducted in the Situation Room, a serious breach of security protocol.</span></p>
<p>In promoting a new memoir chronicling her time working for the president, Manigault-Newman has revealed that shortly after she was fired from the White House, she was <a href="https://www.washingtonpost.com/politics/ex-aide-says-she-refused-hush-money-pens-white-house-memoir-calling-trump-racist/2018/08/10/95b65e42-9ca5-11e8-b55e-5002300ef004_story.html?utm_term=.750e4d470185">allegedly offered the equivalent of a “hush money agreement”</a>: She would be immediately hired onto the president’s reelection campaign and paid $15,000 a month, and she would sign a non-disclosure/non-disparagement agreement that would encompass <a href="https://apps.washingtonpost.com/g/documents/politics/proposed-consulting-agreement-and-companion-agreement-that-omarosa-manigault-newman-said-the-trump-campaign-offered-and-she-declined-after-she-was-fired-from-her-white-house-position/3166/">not only the campaign but also her time at the White House</a>.</p>
<p>This is not the first time reports have surfaced about the administration’s use of agreements. In March, Ruth Marcus of the Washington Post wrote that <a href="https://www.washingtonpost.com/opinions/trumps-nondisclosure-agreements-came-with-him-to-the-white-house/2018/03/18/226f4522-29ee-11e8-b79d-f3d931db7f68_story.html?utm_term=.ecea43e109fe">the president pressured senior White House staffers to sign additional non-disclosure agreements</a> (NDAs) when they joined the administration, similar to the infamous NDAs upon which he relied throughout his time in private business.</p>
<p>There is understandably a bit of confusion regarding the extent to which federal employees can be subject to NDAs once they leave government service. And the Trump White House does itself no favors by continuing to give vague and non-descript answers on the subject. But contrary to what the president might think, he lacks any authority to censor the unclassified communications of former federal employees.</p>
<p> </p>
<p class="rtecenter"><strong>Restrictions on the Speech of Former Federal Employees</strong></p>
<p>The courts have long recognized that governmental bodies have a legitimate interest in regulating the speech of their employees in a manner that is distinct from how those same governmental bodies might try to regulate the speech of ordinary citizens. In 1968, however, the Supreme Court ruled in <a href="https://supreme.justia.com/cases/federal/us/391/563/%23tab-opinion-1947417"><em>Pickering v. Board of Education</em></a> that public employees do not relinquish their First Amendment rights simply by virtue of their employment and that the interest of public employees to comment on matters of public interest is not necessarily outweighed by the government’s interest in regulating that speech. Instead, the court held that a balancing test must be applied, weighing the employees’ constitutional rights and interests to contribute to the public debate against the government’s interests in limiting that contribution.</p>
<p>Relying on the foundational legacy of <em>Pickering</em>, the U.S. Court of Appeals for both the D.C. Circuit and the Fourth Circuit later addressed the related question of the federal government’s ability to censor the written publications of <em>former</em> federal employees who had held security clearances. In <a href="https://casetext.com/case/mcgehee-v-casey"><em>McGehee v. Casey</em></a>, 718 F.2d 1137 (D.C. Cir. 1983), and <a href="https://law.justia.com/cases/federal/appellate-courts/f2/466/1309/424716/"><em>United States v. Marchetti</em></a>, 466 F.2d 1309 (4th Cir. 1972), the two appellate courts concluded that the federal government has no legitimate interest in censoring <em>unclassified</em> materials of former employees and that they may not censor such material, contractually or otherwise. The <em>Marchetti</em> court particularly refused to enforce a CIA “secrecy oath” that would have applied to the unclassified communications of former employees.</p>
<p>The rulings laid out in <em>McGehee</em> and <em>Marchetti</em> have survived to this day and have been incorporated into the regulatory framework of how the federal government handles efforts to restrict—if at all—the communications of former employees.</p>
<p> </p>
<p class="rtecenter"><strong>The Pre-Publication Review Process</strong></p>
<p>The <em>McGehee</em> and <em>Marchetti</em> courts did not, however, declare open season on the government’s ability to impose prior restraint upon the communications of former employees—that is, prohibiting the publication of those communications in the first place. Both appellate courts reaffirmed that current and former federal employees lack a First Amendment right to publish or otherwise disseminate properly <em>classified</em> information and that the government retains the authority to censor those types of communications. The Supreme Court found the same in <a href="https://supreme.justia.com/cases/federal/us/444/507/%23tab-opinion-1953393"><em>Snepp v. United States</em></a><em>.</em></p>
<p>Any individual who has been favorably adjudicated for access to U.S. government classified information has, at one point or another, signed a document known as Standard Form 312, “Classified Information Nondisclosure Agreement.” This is the contractual agreement by which every security-clearance holder agrees to be bound. It memorializes a binding, legal understanding that the individual will not disseminate classified information without authorization. The<em> Snepp</em> ruling reaffirmed the government’s ability to contractually limit—through the SF-312 and related security NDAs—employees' ability to discuss classified information with unauthorized individuals, even after they leave federal employment.</p>
<p>What about former employees who want to publish, for example, memoirs about their time in government? To address this legal confusion and allow former employees to publish their work without fear of facing a criminal or civil suit for unauthorized disclosure of classified information, federal agencies constructed the pre-publication review process. This process—which is only legally mandatory for a subset of clearance holders but is generally available to all who held security clearances—provides former employees with an administrative mechanism through which they can secure U.S. government review and approval of their manuscripts in advance of publication. The scope of the government’s review, however, is limited <em>only</em> to properly classified information. The government cannot attempt to censor unclassified, albeit embarrassing, information within the manuscripts.</p>
<p>Once the government has completed its pre-publication review, it will inform the individual in writing whether the manuscript is approved for release in total; with redactions; or not at all. If the former employee believes the government’s classification determination is erroneous, whether in whole or in part, he or she can file a First Amendment civil lawsuit challenging that determination. <em>Snepp</em> and its progeny, however, require that the individual must <em>first</em> go through administrative pre-publication review; subsequently file the civil lawsuit; and ultimately receive a favorable judicial ruling <em>before</em> publishing any part of the manuscript originally deemed classified by the government. If the individual does not follow that process, the courts have been clear time and time again that they will side with the government if and when it ultimately takes legal action—whether civil or criminal—against the individual, no matter how flimsy the underlying classification determination may have been.</p>
<p> </p>
<p class="rtecenter"><strong>The Trump White House NDAs and the Saga of Omarosa Manigault-Newman</strong></p>
<p>This brings us back to Manigault-Newman. If somehow she had failed to go through pre-publication review process before publishing her book, the president might be in luck. But Manigault-Newman <a href="https://www.axios.com/omarosa-secret-situation-room-tape-legal-national-security-f8e5de57-cb3f-41b7-82d0-e11927b3f6c1.html">appears not to have had a security clearance at all</a>, making the pre-publication question potentially irrelevant.</p>
<p>The court precedent is explicitly clear that, with the exception of properly classified information, the president cannot and may not censor or impose any type of prior restraint upon his former aides—no matter how embarrassing the revelations those aides may seek to publicize. That includes the Trump administration’s apparent effort to construct a “hush money” agreement after individuals leave government employment, which would be unenforceable as a constitutional matter and would be contrary to public policy. Former federal employees simply cannot be forced to contractually surrender their First Amendment right to discuss unclassified details of what they saw while serving in government. (If they choose to voluntarily enter into such an agreement, of course, that is a separate matter.)</p>
<p>The Trump campaign <a href="https://www.washingtonexaminer.com/news/exclusive-trump-campaign-seeks-millions-against-omarosa-for-violating-nondisclosure">has separately filed</a> a civil lawsuit against Manigault-Newman, claiming that her comments on the president breached the campaign NDA she signed before working in the White House. But that is of no consequence either, at least with respect to her time in the administration. This NDA can no more contractually bind her to surrender her First Amendment rights than could the NDA she was offered after her departure from government. </p>
<p>This obviously is a frustrating legal stumbling block for the president, who has long made clear his preference for non-disclosure agreements to silence anyone who was once within his inner circle. However, as so many of us warned while he was running for president, overseeing your own private business and being the elected head of government are two very different legal worlds. Part and parcel of being the most powerful person on the planet and the leader of a constitutional republic is the corresponding limitation on your ability to silence detractors.</p>
Tue, 14 Aug 2018 12:19:55 -0400Bradley P. Moss15684Imagining a Federalist Israel: Notes Toward a Disruptive Fantasy
https://www.lawfareblog.com/imagining-federalist-israel-notes-toward-disruptive-fantasy
<p><em>Editor’s note: Over the next week, </em>Lawfare<em> will be running a series of essays on federalist governance in the Middle East. This essay is the second in the series. Read the introductory essay <u><a href="https://www.lawfareblog.com/federalism-middle-east-collection-essays">here</a></u>.</em></p>
<p align="center"><strong>Introduction</strong></p>
<p>This is out there. It’s unrealistic. It’s a fantasy thought experiment. But it’s time to start talking about federalism in Israel—and ultimately in Palestine as well.</p>
<p>To be clear, I’m a two-state solution guy. I believed in the two-state solution before it was cool. I believed it in while it was cool. I kept the faith while others were busy losing it. And I continue to believe in it now that it’s decidedly no longer cool. I believe in it because I am sympathetic to the Zionist aspirations of Jews over more than a century, and I believe in it because I am sympathetic also to Palestinian national aspirations that have matured over the same time period. I believe in it because I believe that divorce is generally the best solution to a truly terrible marriage. The day we can get back to the negotiation of an equitable divorce arrangement for Palestinians and Israelis, count me in.</p>
<p>Indeed, I want to stress at the outset that I’m not writing this piece because I have given up on the two-state solution. I’m writing it because, to a great extent, the parties to the conflict have done so, or are in the process of doing so, and the conflict is thus drifting toward a one-state reality—either a one-state reality in which Israel actively incorporates the West Bank, as some of its politicians advocate, or a one-state reality in which the populations have become so intertwined as a consequence of the current stalemate that they become impossible to separate and the status quo thus becomes a permanent state of affairs. In either context, it strikes me as important to try to imagine the qualities and character of the state that will emerge. Will it be a state in which one ethnicity dominates another—the prospect that many people see in the recent passage by the Knesset of a new Basic Law on Israel as the nation state of the Jewish people? Will it be a unitary single state with bloc voting by ethnicity and religion? Or can Israelis and Palestinians be creative in designing structures that lower the stakes in what seem today like zero-sum disputes? And can we somehow enable this single state to express both communities’ national aspirations?</p>
<p>I want to stress something else at the outset too: I’m not delusional. There’s a known condition in the psychiatric literature called Jerusalem Syndrome, in which a person of previously sound mental health visits Jerusalem and experiences a religiously themed period of psychosis. These episodes are often accompanied by the perceived need to give a sermon at a religious landmark. There’s a related—related, at least, in my view—phenomenon in which outsiders to the Palestinian-Israeli conflict suddenly developing the delusion that they have some comprehensive plan to solve the unsolvable, to bring the parties both to their senses and to the table, and get done at long last “the deal.” Some who have suffered this diplomatic version of Jerusalem Syndrome have served at the most senior levels of American government. I suffer from Jerusalem Syndrome neither in its psychiatric nor its diplomatic form. I am not offering here any kind of peace plan, let alone a comprehensive one. I am fully aware that what I am proposing—as I said at the outset—is a kind of blue-sky fantasy that may well raise more questions than it answers. So consider what follows less of a proposal and more of a mood that might constructively guide us in a period of drift.</p>
<p>With those prefatory disclaimers, I think it’s time for a serious discussion of federalism, both in the context of the Israeli-Palestinian conflict and within the context of domestic Israeli politics themselves. I don’t mean federalism here in the sense that it’s sometimes used in the Israeli-Palestinian context, which is to say of some kind of confederation between Israel, the Palestinian territories, and—in some iterations—Jordan. I mean it in the far more ambitious sense of tearing up all internal borders within the combined territory of Israel and Palestine and carving the land up into a series of small and highly-autonomous provinces, cantons, or states—the specific terminology here carries symbolic importance to which I will return—unified by a national government empowered in the realms of foreign relations, national security, certain criminal enforcement, and human and equal rights protection. I am by no means the first to suggest this. A <u><a href="http://www.haaretz.com/opinion/.premium-1.582591">pair</a></u> of <u><a href="http://www.haaretz.com/israel-news/.premium-1.619741">articles</a></u> in Ha’aretz in 2014 suggested carving up Israel into cantons as a way of handling internal divisions. Wrote Judd Yadid and Carlo Strenger:</p>
<blockquote><p>Israeli cultural politics need not be a zero-sum game, imposing the values of one community over others. Solutions are to be found in countries like the United States, Switzerland, India and Spain. Just as U.S. states provide a framework for playing out America’s “culture wars” on a sub-national level, Israel’s cultural regions could create a more livable status quo. While the U.S. may dwarf Israel’s population and landmass, our cultural chasms are exponentially deeper. And just as the Swiss cantons afford their residents a high degree of autonomy in such areas as education, health and personal-status issues (including marriage), so should and can Israel’s.</p>
</blockquote>
<p>Last month, writing in the Washington Post, former Foreign Service officer Daniel Hollander penned a short essay, entitled “<u><a href="https://www.washingtonpost.com/opinions/forget-the-two-state-solution-lets-try-six/2018/07/18/80895696-7e32-11e8-b660-4d0f9f0351f1_story.html?utm_term=.b0584d4c90a5">Forget the Two-State Solution. Let’s Try Six</a></u>” in which he floated the idea of a “a federalist, multistate solution.”</p>
<p>In this essay, I want to flesh out the idea that a federal Israel may offer an approach to Israel’s drift toward binationalism. In Israel these days, there’s a fair bit of talk of approaching the conflict on the basis of “two states, one homeland.” I want in this essay to explore the idea of this sort of deep federalism both as a more concrete expression of the concept and as a means of alleviating certain tensions within contemporary Israeli society more broadly. The idea here is not to replace either Zionism or Palestinian nationalism with some binational secular vision, but to try to imagine a governance system that might give reasonable expression to the aspirations of both historical movements.</p>
<p align="center"><strong>The Current Dysfunction and the Alternative of Federalism</strong></p>
<p>Thinking seriously about, and trying to engineer, the character of the emergent state in the territory of Israel and Palestine is important because some kind of one-state reality is, in fact, emerging. Whether this reality ultimately emerges out of a deliberate Israeli policy of annexation or, more likely, out of failure to keep the populations separate enough to maintain a viable two state option—the slow encroaching drift of the anti-solutionist status quo—is less important than the fact that every passing year makes the two-state solution harder to achieve and thus makes some form of one-state governance more likely, whether one-state governance on the basis of domination or one-state governance on the basis of equality. Is this trend reversible? Sure. But it is the glide path on which the parties find themselves, and you wouldn’t put even money on their changing course. The reason is two-fold: dysfunction on the Palestinian side, and dysfunction on the Israeli side.</p>
<p>Any two-state solution requires execution, that is, tough decisions by leaders in both communities. It requires political risks. It requires leaders to join together, hold hands, and jump. On the Israeli side, the current government has no appetite for the two-state solution; many members of the government don’t even pay lip service to it. As the recent passage of the Israeli nation-state law shows, the current Israeli government is far more interested in defining the exclusively Jewish character of the current state than it is in yielding up sovereignty over any territory it controls. While the current government has at time shown caution about settlement building—despite its right-wing character—it has certainly continued settlement building and construction in Jerusalem that makes any eventual Palestinian state ever-less viable and ever-harder to envisage. There seems to be no prospect of this government’s replacement with one that would be committed to making a serious go at resolving the conflict on a two-state basis. The prospects of a government that would aim to freeze the conflict in place by preventing the outward growth of settlements and thus preserve the possibility of a two-state deal sometime in the future seems only somewhat more likely. The Israeli public has drifted perceptibly to the right, and the country’s commitment to the two-state outcome has dimmed accordingly.</p>
<p>The dysfunction on the Palestinian side is even worse. The Palestinian leadership is split between Gaza and the West Bank. On the West Bank side, it’s weak and corrupt and lacking in legitimacy. On the Gaza side, government is the province of a vicious and tyrannical terrorist group that actively targets civilians and treats war crimes as standard rules of engagement.</p>
<p>In other words, while large numbers of both Palestinians and Israelis still support a two-state solution in principle, the leadership of neither side is either able or willing to get there. This level of dysfunction on either side alone would be enough to preclude a two-state deal. The dysfunction on <em>both </em>sides—which is mutually reinforcing—all but guarantees that for the foreseeable future, progress will be incremental and set against a larger pattern of drift. That drift has been—and will, I suspect, continue to be—toward a reality in which separation is ever harder.</p>
<p>We tend to think about Israeli-Palestinian negotiations in the language of peace treaties. This flows from the two-state model; if you’re establishing the relationship between two separate sovereign states, you tend to think the language of international negotiations. But if you suspect, as I do, that neither party has either the will or the political capacity to effectuate that separation and we are thus really discussing the emerging qualities of a single state that will govern two peoples, a different vocabulary for the negotiations comes to mind: that of constitution writing.</p>
<p>One dirty little secret of the Palestinian-Israeli conflict is that the difference between the one-state solution and the two-state solution is at least a little bit less than meets the eye. Two states, after all, does not quite mean two <em>real</em> states. One state would be demilitarized; it would be entirely dependent on the other economically; and it would have certain other <em>de facto</em> or <em>de jure</em> limitations on its sovereignty. It would not be territorially contiguous. Palestine as imagined in the abortive attempts to birth it from the Oslo process—even in the Palestinian versions of the outcome—is an entity with all the symbolism of real statehood but something less than the reality of it.</p>
<p>Conversely, the one-state solution cannot plausibly mean one unitary—in the sense that Israel is now unitary—binational state with a roughly equal number of Israelis and Palestinians each voting for the same representative institutions that Israelis vote for. This is a recipe for the worst sort of ethnic politics and majoritarianism. There is simply no history of such countries functioning well or staying together without federalism. The zero-sum nature of certain ethnic goods—the symbols of the state, for example, land use issues, control of a national education curriculum, and control of the army most notably—make a unitary state in this context an extremely fraught proposition. For an example of just how fraught, one need only look at Lebanon, Israel’s neighbor to the north, which has struggled with the politics of confessional balance since its independence and has remained a weak and divided state throughout its entire history—one that saw a lengthy and bloody civil war.</p>
<p>It is the desire to bridge this gap that has produced the many proposals for some kind of confederation between Israel and Palestinian controlled areas. In these discussions, the nature of the confederation in question is almost always underdeveloped as a concept, and it’s also nearly always focused on enclaves and borders as they currently exist—with whatever adjustments negotiators might make to them. This form of confederation represents an intellectual attempt to grapple with the fact that the Palestinian areas will, in fact, be something less than a full state, particularly in relation to the very powerful Israeli state. It thus doesn’t alleviate problems like borders, Jerusalem, or regional, ethnic, and religious diversity. It merely renames them. The map is still left with an Israel, a West Bank, and a Gaza, and the problems with any Palestinian state one might create still remain. A confederation requires not merely a resolution of those issues that both sides can sign onto but an <em>additional</em> agreement about some degree of joint governance between the resulting entities.</p>
<p>My point here is that if we are on a glide-path to some kind of one-state reality, either <em>de facto</em> or <em>de jure</em>, we have to ask ourselves what the democratic and institutional qualities of that one state will be. Will it be a single state in which a majority of Palestinians will have no right to vote and live as a subjugated people, with some form of limited autonomy? Will it be a crude expression of majoritarianism? Will it be a kind of fake state dominated by a real state with an overlay of confederation? Or is there some more imaginative vision of a single state’s constitutional arrangement that might offer more hope of satisfying both Jewish and Palestinian national aspirations?</p>
<p>It is possible, I believe, to imagine a different model of federalism, a more radical and ambitious one than the various confederation models put forth—one that offers equal rights to Israelis and Palestinians, one that would alleviate some (though not all) of the most difficult issues that define the conflict, and one that might also alleviate some intra-Israeli and intra-Palestinian tensions. This model, I want to stress, does not answer all questions. It is not a peace plan. It is just a way of thinking about the construction of a one-state reality if Israelis and Palestinians prove unable to effectuate a meaningful separation.</p>
<p>The structure I am suggesting here is highly alien to the nature of the Israeli state, which is resolutely unitary. Many decisions that in the United States belong to state and local governments in Israel are decided at the national level. This is partly because Israel is small, and we tend to think of federalism as a structure for managing big states. But it’s also a matter of choice and design. Switzerland is just as small as Israel is but it works entirely differently. Federalism can also work as a tool for managing ethnic divisions within diverse countries; this is the role it plays successfully in countries like Canada and India. By elevating issues like education and land use to the national level, Israel makes the stakes in unitary national elections extraordinarily high. One key to creating a sustainable one-state reality might be to lower those stakes by giving Israelis and Palestinians—religious and secular alike—a great deal more local autonomy and reserving fewer matters for national resolution.</p>
<p align="center"><strong>An Overview of Federalism in Modern Israel</strong></p>
<p>Before sketching out what such an arrangement might actually look like, let’s take a look at just how unitary the Israeli state is and contrast it specifically with the United States, which divides sovereignty between a national government of limited powers and state governments with general police powers. Those state governments then grant a great deal of authority over matters like education and land use to localities.</p>
<p>By contrast, Israel has no states. And its local governments have no explicit constitutional existence at all. There is no mention of local government at all in Israel’s Basic Laws, which function as its working constitution. Despite <u><a href="http://fs.knesset.gov.il/17/law/17_lf1_362199.pdf">attempts</a></u> at comprehensive reform of the legal framework that governs local government, including discussion of proposals for a Basic Law that would address its constitutional role vis á vis the central government, local government remains regulated by a <u><a href="https://www.knesset.gov.il/lexicon/eng/LocalAuthorities_eng.htm">patchwork of ordinary legislation</a></u>, largely dating back to the British Mandate.</p>
<p>On the spectrum between wholly centralized government and decentralization á la American federalism, Israel is much closer to the former. But owing to the direct interaction between municipalities and those they govern around the various services they provide, along with Supreme Court case law that has empowered municipalities to regulate certain key aspects of public life, local government in practice plays a somewhat larger role in Israel than it may appear just looking at the law on the books.</p>
<p>The conventional expression of the relationship between central and local government in Israel, often articulated in case law and in the literature pertaining to local government, has been that local authorities are administrative branches of the central government that enjoy limited autonomy. For example, in 1992, the Ne’eman Public Commission report on local government spending described local government as follows:</p>
<blockquote><p>A local authority is the “creation” of the central government. It is the central government that determines its roles and authorities, and accompanies it in all its decisions and activities. In practice, local government is financially dependent on the central government and serves as its arm, with some degree of autonomy.</p>
</blockquote>
<p>As a consequence, local government law in Israel is a sub-category of administrative law, rather than a wholly separate discipline. Municipalities are subject in principle to the same constitutional and administrative obligations that apply to the central government. The court system is hierarchical in the sense that no region within Israel’s legally recognized jurisdiction has an independent court system. The police force is national.</p>
<p>The legislative framework governing local government in Israel grants the central government intrusive oversight powers over the administration of municipalities and local authorities. The Minister of the Interior, for example, exercises a large measure of control over local authorities’ officials, budget and policy. The minister’s authorities include, among others:</p>
<ul><li>The authority to create and dismantle municipalities and to redefine their borders;</li>
<li>The power to terminate local officials, <em>including elected officials</em>, to appoint local officials, and to require new elections;</li>
<li>All bylaws promulgated by local authorities must be reported to the Minister of the Interior, who may then intervene and even strike down local measures;</li>
<li>The Minister of the Interior approves the budgets of local authorities;</li>
<li>The Ministers of the Interior and the Treasury may audit local authorities and intervene in their financial dealings if they find that they are not managing their finances properly.</li>
</ul><p>While local authorities provide a variety of services to their residents, ranging from business licensing to planning and construction, health, education and even religious services, the framework for those services and their financing are largely dictated by the central government. For example, planning and construction policy is highly centralized—local planning and construction committees are subordinate to regional and national committees. Public health services are provided under the National Health Insurance Bill. The Ministry of Education determines the content of the core studies program that most Israeli schools are required to provide and even issues teachers their paychecks—though the curriculum varies in practice considerably between municipalities.</p>
<p>The central government also plays a major role in funding municipalities. Among other types of financing, the <a href="http://knesset.gov.il/committees/heb/material/data/pnim2016-02-22-00.pdf">vast majority</a> of Israel’s municipalities receive “balancing grants” from the central government to bridge gaps between their income and expenditures. At the same time, the central government has limited municipalities’ authority to impose taxes. In response to the inflation crisis that plagued Israel in the 1980s, the central government introduced legislation designed to substantially limit municipalities’ authority to collect municipal taxes and achieve greater uniformity among the different local authorities with regard to municipal taxes. Prior to this reform, municipalities regularly compensated for deficits in their budget by raising municipal taxes. The reform also limited the authority of municipalities to hand out tax breaks, responding to problems of corruption and lack of transparency in the way tax breaks had been handled (the history of the municipal tax reform and its aims are discussed <u><a href="https://www-nevo-co-il.ezp-prod1.hul.harvard.edu/psika_html/elyon/13024530-s18.htm">here</a></u>, at paragraphs 19-20, in Hebrew).</p>
<p>The situation is a little more complicated than this stark presentation might suggest. Indeed, both the descriptive and normative foundations of the conventional wisdom about the relationship between central and local government have been challenged.</p>
<p>As a descriptive matter, Israeli public law scholars have challenged the claim that local government is no more than a subordinate, limited arm of the central government. They have argued that despite what the law on the books seems to suggest, local authorities actually enjoy quite a lot of autonomy in practice and have a substantial impact on substantive public policy. For one thing, <u><a href="http://fips.huji.ac.il/sites/default/files/floersheimer/files/razin_local_government_reform_in_israel.pdf">some have argued</a></u> (see p. 57), the central government lacks the resources and manpower to actually exercise the kind of oversight that the statutory framework allows it to exercise over all of Israel’s municipalities.</p>
<p>Moreover, scholars have documented <em>de facto</em> delegation of key public policy issues to local authorities. At times, this delegation results from failure on the part of the various factions of the central government to agree on a national policy in certain areas. The result is that one area in which local authorities have had a key role is in the regulation of local conflicts between state and religion. For instance, municipalities have set their own rules regarding the operation of local businesses during the Sabbath, taking into consideration the religious inclinations of the local population. Over the past year, the Supreme Court, the Knesset and a number of municipalities have been tussling over this, with the court approving a Tel Aviv bylaw allowing certain business to open on the Sabbath, the Knesset passing legislation in response requiring approval from the Minister of the Interior for such local ordinances, and some municipalities seeking to pass similar bylaws before the new law goes went into force. The matter appears headed back to court now.</p>
<p>Another similar context in which local authorities have been consequential is the controversy over the sale of non-kosher meat, a highly contentious issue in Israel because of the religious and symbolic significance of non-kosher meat in Jewish tradition and history. In 1954, the Supreme Court held that a municipality lacked the authority to deny licenses to businesses that sell non-kosher meat, reasoning that balancing state and religion is a task for the central government. A similar decision struck down bylaws promulgated by local authorities that prohibited the sale of non-kosher meat. The Knesset responded by passing a broad authorization bill that empowered local authorities to ban the sale of non-kosher meat, essentially delegating the regulation of this issue to local authorities. In a landmark Supreme Court decision (See <u>HCJ 953/01,</u> <em>Solodkin v. Minister</em> of the Interior, 2004), the Court upheld this delegation but held that the exercise of the authority to ban the sale of non-kosher meat should take into account the composition of the local population. If most of the local population opposes the sale of non-kosher meat, the municipality may prohibit its sale. If there is little objection, it may not do so. In localities where the positions of the residents are mixed, the Court held, local authorities should be guided by the principle of proportionality and see to it that those who want to purchase non-kosher meat would have reasonable access to an establishment where they can do so.</p>
<p>Finally, the Supreme Court has recognized that in certain contexts, local authorities may actively oppose the central government’s policy. For example, in one of the landmark judicial decisions concerning the authorities of local government (<u><a href="http://elyon1.court.gov.il/files_eng/95/380/028/B01/95028380.b01.htm">HCJ 2838/95</a></u>, <em>Greenberg v. The Katzrin Local </em>Council, 1997), the Supreme Court held that a local authority is allowed to use its resources to launch a political campaign against a potential Israeli withdrawal from the Golan Heights. The Court reasoned that a local authority may launch a political campaign against national policy in cases in which it would be <em>directly affected</em> by that policy, as it would in the case of Katzerin. Justice Levin noted (see paragraph 7) that,</p>
<blockquote><p>[t]oday, the local authority functions as a quasi-political community, assuming a wide variety of functions, reaching beyond the functions traditionally associated with municipalities and local government. The control exercised by the central government in Israel is weaker than is commonly assumed.</p>
</blockquote>
<p>(Note that Justice Levin’s opinion provides a useful historical overview of the development of local government in Israel.)</p>
<p>Later on, in another case (<u><a href="http://elyon1.court.gov.il/files/04/040/101/T20/04101040.t20.pdf">HCJ 10104/04</a></u>, <em>Peace Now v. Yossef</em>, 2006 (Hebrew)), the Supreme Court largely reaffirmed <em>Greenberg</em> and held that local councils in the West Bank were allowed to divert resources to organizations that campaigned against the Gaza disengagement plan. The Court also held, however, that any funds diverted for that purpose should be deducted from the government aid provided to the local authorities involved in that campaign. </p>
<p>From a normative point of view, the advantages of preserving a measure of autonomy for local government have received attention in both case law and legal scholarship. Those supporting increased local government autonomy have emphasized the role of the democratically elected organs of local government (like mayors and city councils), its proximity to voters, its expertise in local matters and its ability to recognize and respond to developing needs in dynamic local environments. Some authors have even advocated for a reassessment of the balance of power between central and local government in Israel that would better reflect the advantages of local government. Among other writers, Tel Aviv University Faculty of Law Professors Yishai Blank and Issachar Rosen-Zvi have called for local government reform that would replace the existing statutory framework (which, they argue, views local authorities as inefficient and often corrupt conduits for the central government’s policies that need to be tamed) with a new approach that would afford more weight to the democratic virtues of municipalities.</p>
<p>In sum, while it is inaccurate to say that Israel’s government is entirely centralized and there are important policy areas where local government has taken the lead, the Israeli state remains a highly-centralized body, one with pockets of local autonomy that are, well, pockets.</p>
<p align="center"><strong>Imagining a More Federal Israel</strong></p>
<p>Let’s now enter the realm of fantasy and imagine a far more federal Israel. Let’s start by erasing the Green Line, which has moral significance only if one is trying to separate the Palestinian and Israeli populations and create borders between states. After all, the Green Line is nothing more than the cease-fire line from 1948, the place where armies happened to stop. Jewish and Palestinian families and communities both straddled it. The line reflects nobody’s considered judgment of how one would best design governance units. If one were thinking from scratch, nobody would draw a line that looks anything like it. Thinking federally allows us to do something much closer to thinking from scratch.</p>
<p>So let’s imagine instead a series of self-governing enclaves, each with the same constitutional powers as one another—broad authorities over education, local land use, issues of religion and state, taxation, and service delivery. Some of these enclaves are majority Jewish; some are majority Palestinian. Some are almost exclusively one or the other; some may be very mixed. Depending on how the internal lines are drawn, there might be a few of these enclaves or there might be many of them. They might vary in size or not. (It is also possible to imagine these enclaves as having differential powers, what some scholars term asymmetric federalism, but let’s imagine the federalism, at least for now, as symmetrical.)</p>
<p>The terminology here is important. To call these enclaves “states” might raise hackles in a part of the world where the terms “Jewish state” and “Palestinian state” connote fully independent sovereigns and expressions of national ambition. Palestinians have long feared “cantonization” of the West Bank, so we need to avoid the Swiss terminology. So let’s adopt the Canadian term “province” as a useful placeholder term.</p>
<p>Dividing Israel and the West Bank (let’s leave Gaza aside for now) into provinces with equal and symmetrical constitutional authorities would immediately alleviate certain of the most vexing issues in the Palestinian-Israeli conflict. For one thing, it would eliminate the problem of the external borders of the state, replacing it with the question of the <em>internal</em> borders of its provinces. While that latter question would be a dicey one across a great many axes, the question of what province you live in in the context of a state that guarantees equal rights is at least a somewhat less heavy question than that of what <em>country</em> you live in. Without underestimating at all the challenges of drawing these internal borders, therefore, it’s plausible to imagine that they would be at least somewhat less fraught than the challenges of drawing borders to separate Israel from Palestine.</p>
<p>A federal Israel could also solve a chunk of the problem of Jerusalem. Jerusalem could be the capital of the national entity. Municipal Jerusalem could also be a very mixed province within it. Jerusalem Palestinians have, as a group, refused to vote in municipal elections since the annexation of the city. A self-governing Jerusalem province that was the capital of a national entity might provide a framework for their inclusion in the state and their involvement in municipal politics that they have long boycotted and that has ill served them.</p>
<p>The approach could also substantially alleviate the problem of settlements. In a two-state model, after all, settlements either have to be dismantled or borders need to be adjusted in order to accommodate their permanence. In a federal model, by contrast, it’s possible to imagine what would amount to Jewish neighborhoods or villages in Palestinian-majority provinces—just as there would be Palestinian villages and cities in Jewish majority provinces. Continued development of these communities would be subject to provincial law and government, just like any other community in the province, and the residents would be protected by strong national central enforcement of equality rights.</p>
<p>One could also imagine a more federal system’s ameliorating some of the fierce sectarian politics within Israel proper, politics that have analogous tensions on the Palestinian side. Right now, control of certain Israeli ministries comes with immense power to allocate money and goods to favored communities. The result is a kind of spoils system in which, for example, religious parties distribute money to their school systems, the housing ministry invests in housing for specific types of groups, and Bedouin communities in the Negev have violent clashes with the government over local building restrictions in their communities. A principle of letting Tel Aviv be Tel Aviv, letting B’nei B’rak (a uniformly religious community nearby) be B’nei B’rak, and letting Umm Al Fahm (a Palestinian Israeli city in the North) be Umm Al Fahm might have a lot to recommend it in reducing the stakes in who controls the national functions of the state. It could also reduce the problem of the neglect of the periphery; the center of gravity of Israeli society is the wealthy coastal plane and the area between the coast and Jerusalem. The country’s North and South tend to get left behind. Giving those regions more autonomy and budgetary and governance authorities will make them less dependent on a central government for which they are often not the focus of attention.</p>
<p>Finally, a more federal Israel would reduce—though certainly not eliminate—the pernicious politics of demography in the state. Right now, Israelis and Palestinians alike worry about birth rates and immigration as an expression of political power. Jews worry about maintaining a Jewish majority in the areas controlled by Israel, as Palestinian birth rates eclipse Jewish reproduction. Secular Israelis worry about maintaining a secular majority, as ultra-Orthodox birth rates eclipse secular reproduction by an even greater margin. Palestinians worry about Jewish immigration under the Law of Return, and Israeli Jews are dead set against any reciprocal recognition of a Palestinian Right of Return. The demographic politics are so ugly, in part, because the stakes are so high. Only one vote—the vote for the Knesset—ultimately controls both a demographic spoils systems and the power to define the nature of the state. Contrast that with Canada, where cultural policies in Quebec are genuinely and radically different from policies elsewhere in Canada, or the United States, where Nevada chooses to have legal prostitution and Utah tightly regulates alcohol and criminal law varies widely among the states; the stakes in national elections, for cultural and religious purposes, are consequently far lower. Spread the power to govern around a bunch of different Israeli provinces, and allow those different communities to be dramatically more self-governing, and you potentially lower the stakes in Israeli demographic wars too. The reason is that you make it less threatening to be a minority. Being a minority at the national level is less of a burden when you’re simultaneously a governing majority in the community that actually governs your day-to-day life.</p>
<p align="center"><strong>The Problems Federalism Does Not Solve</strong></p>
<p>There are, of course, also major problems between Israelis and Palestinians that a federal model simply does not address—and some that it actively creates. As I noted above, while it eliminates the problem of external borders, it creates a problem of internal borders. Some provinces could be easy: creating a province out of the Golan Heights, for example, would give autonomous government to thousands of Druze and a few Jewish communities at the expense of nobody. On the other hand, the creation of many provinces would be tough and would require line-drawing that involves the definition of political communities and coalitions. The risk here is gerrymandering and the picking of winners and losers. A province that includes both Tel Aviv and B’nei B’rak, after all, is a very different animal than are two provinces that separate them. The drawing of internal borders would thus praise profound and challenging questions: Is the goal to engineer autonomous Jewish and Palestinian provinces, and autonomous religious and secular enclaves of both communities, and to thus entrench and give voice to existing identity categories? Or is the goal, conversely, to create communal blends that force coalition-building across sectarian, ethnic, and religious lines? Or is the goal to do one thing in some communities and another in others?</p>
<p>A federalist Israel would also have to struggle with the delegation of powers between the regional and national governments. The more ambitious the federalism, the more it would necessarily involve denuding a powerful central state of authorities that constitute the source of its power. That’s a wrenching process, particularly in a country that has a paternalistic governance tradition going back to deep socialist roots. Israel is not the United States or Switzerland, where federalism emerged from existing states banding together to create a national pact; it is a country where federalism would have to emerge from a powerful central government’s willingness to be less powerful. That’s a tough sell.</p>
<p>Another hard problem would be the protection of individual rights within the context of provinces that might be quite illiberal or have deep splits. A B’nei B’rak province would not be a pleasant place, for example, to be non-Sabbath observant. And a Hebron province dominated by Islamist fundamentalists would be a highly uncomfortable place to be a member of the Jewish settlement enclave that is currently protected by a heavy military presence in the city. This problem already exists to some degree, and it’s actually mitigated by the power of the central government. Reduce that power and empower instead those local communities, and we can expect it to worsen—and to require mechanisms of active alleviation. We can probably also expect some degree of self-sorting of a type we have already seen. Jerusalem today is far more religious than it used to be, for example.</p>
<p>Related to all of these issues are certain broad challenges a more federalist Israel would have to face, challenges that go directly to the nature of the Israeli state itself. One is the governance of security. At the macro level—and this is a deep challenge—a truly federalist Israel which granted equal rights and obligations to all of its citizens necessarily would mean a binational army, which is simply unthinkable for many Israeli Jews. Importantly, however, this is not a creature of a <em>federalist</em> Israel per se. It’s unavoidable in <em>any</em> one-state reality that isn’t going to be a deeply undemocratic expression of Jewish rule over a large non-voting, non-Jewish minority (or even majority). It would be theoretically possible, of course, to maintain the current system of exempting Palestinian citizens of Israel from compulsory military service, but it would be hard in the long term to square such a policy with the larger structural ambition of creating provinces of symmetrical powers composed of citizens of equal rights. Exempting 20 percent of the population from military service, after all, is a different animal from exempting half of it.</p>
<p>In addition, federalism creates a question of local policing that a binational unitary state does not face. Who is responsible for criminal enforcement within the provinces? And most particularly, who is responsible for protecting local minorities from oppression by their provincial leaderships or the majority members of their communities? For federalism in an Israeli context to have a hope of success in not devolving into a patchwork of crude and corrupt local majoritarianisms, it seems to me that the national government would need to retain strong enforcement powers at least over anti-corruption and individual rights protection.</p>
<p>This problem of the governance of security has a particularly acute manifestation in the specific problem of the competing necessities of preventing terrorism and allowing freedom of movement between the provinces. In any functioning democratic polity, after all, people can move freely between jurisdictions. Yet asking the residents of Israel proper to accept free movement of Palestinians from the West Bank—let alone Gaza—for labor, visitation, or residence is the toughest of tough sells. Terrorism has been a long-term reality of Israeli life and controlling Palestinian movement is one of the key tools available to the Israeli state in managing it. Moreover, Israelis would reasonably worry about flight into Israeli provinces by Palestinian economic migrants. Why would one live in an impoverished village in the West Bank, let alone in Gaza, if one has the right to life in Haifa? The flip side of this problem is no less fraught. No Palestinian would regard a state that did <em>not</em> allow freedom of movement as one that took equality seriously.</p>
<p>Finally, a more federalist Israel faces the broad problem of the challenge federalism inherently poses to the modern Zionist ideal—an ideal that receives expression in the symbols and name of the state itself. The power of the centralized Israeli state is partly a function of the fact that the Israeli state was a deliberate engine for forging identity. And the identity it aspires to forge—itself a highly contested question—is imagined by virtually nobody as an organic expression of the regional diversity of a collection of provinces, some Jewish, some Palestinian, some religious, some secular, and some mixed. A federalist Israel would thus face not only the very tangible question of representation in and domination of the residual national institutions of the state, but also the question of those symbols. Is the state in question even called Israel? Does it have a flag with a Star of David? Is its national anthem “Hatikvah”? That is, a federalist Israel would face the question of in what sense is it meaningfully a Jewish state at all—a question that is currently roiling the Israeli political system. These are questions, of course, inherent in any drift towards binationalism. But they arise acutely in the federalism context because the outcome would have to be engineered, not reached by passively following the path of least resistance. This point has its mirror image on the Palestinian side. Palestinian nationalism has never aspired to a political system of shared power in a federal mosaic with Zionist-dominated entities. In its secular forms, it has imagined an ethno-nationalist state; in its religious forms, it has imagined an Islamist state. A federalist Israel would require major ideological adjustments for both communities.</p>
<p align="center"><strong>Seven Principles of Federalism in Israel and Palestine</strong></p>
<p>It is important not to underestimate the magnitude of these challenges. It is also important, however, to realize that, in meeting them, Israel has certain strengths to bring to the table. For starters, it is a highly functional state with a particularly high-functioning legal system, including a first-rate judiciary. This judiciary has a developed tradition both of balancing the democratic will of the majority against the needs of minority communities and also of balancing the desires and norms of local communities against the rights of individuals. While the Israeli judiciary—and the High Court of Justice, in particular—is controversial within contemporary Israeli society and its role is actively the subject of political contest, it remains a relatively empowered set of institutions that already, to some degree, plays the roles it would have to play in a more federal governance structure.</p>
<p>Moreover, because Israel is a highly functioning state, it actually can arrange and implement governance reforms on its own, without negotiating with anyone. That is, we have the possibility of gradualism here. Unlike a peace deal, which has to be negotiated in a major set of agreements, Israel could establish some of the governance structures I’m describing here within the Green Line first, and then admit new provinces at a later date if and when the structure provides an attractive mode of governance that Palestinians would actually wish to join. One could imagine, in other words, a federalist Israel developing over time, starting with a series of domestic reforms and with provinces in the West Bank being absorbed over time. The particularly thorny problem of Gaza could be deferred for a much longer period of time. This approach has some potential to mitigate the now-dicey problem of Palestinian governance too; it’s much easier to design a functional small-area provincial government, after all, than it is to create and make functional an entire state.</p>
<p>From this very long windup, let me now distill what I think are seven basic principles of a federalism that might plausibly constitute a stable, democratic governance equilibrium for a one-state reality.</p>
<ul><li>First, each province has the same rights and authorities. We are not talking about limited regional autonomy, in which the Israeli state delegates—or subcontracts—some powers to a Palestinian autonomous region. The Nablus province has to have the same governance powers as the Tel Aviv province. (One could imagine a form of asymmetric federalism having application here—for example, giving certain provinces specific constitutional functions with respect to sites and populations within them. Think of the unusual authority, for example, that Canada allows Quebec to protect French language and culture. This approach might make the ultimate incorporation of Gaza into the country more conceivable. But by and large, provincial functions need to be sufficiently symmetrical so as not to give rise to anxieties about privileging one community at the expense of another.)</li>
<li>Second, every citizen must have equal rights under provincial law in every province.</li>
<li>Third, every citizen must have equal rights under national law.</li>
<li>Fourth, the national government must constitutionally guarantee a democratic form of government at the provincial level.</li>
<li>Fifth, the national government must be ultimately responsible for the enforcement of individual rights within the provinces, so that the provinces don’t—in secular areas—ban religious expression in a French-like fashion or—in religious areas—impose religious law in a fashion oppressive to secular minorities.</li>
<li>Sixth, beyond that, a federal Israel would have to tolerate radical local autonomy—provinces that may be quite Islamic, provinces that may be Ultra-Orthodox Jewish, provinces that may be radically secular, and provinces that may be deeply mixed.</li>
<li>Seventh, the national government should constitutionally be empowered in the realm of national security, anti-corruption, and individual rights protection. </li>
</ul><p>In closing, I want to say a word about how one might think about implementing federalism in Israel-Palestine. Specifically, it is important <em>not</em> to think about it as a peace plan or a matter of negotiation between Israeli and Palestinian interlocutors. For federalism to be attractive, it has to be attractive as a means through which Israelis—Jewish, Palestinian, religious, and secular—can govern themselves. It must be self-justifying on those terms. The hope is that the creation of federal structures might also, probably later, offer a basis for voluntary incorporation of West Bank provinces into a vibrantly democratic and federal Israeli state. But the initial task is the creation of provincial structures that allow meaningful self-government for the diversity of the citizen population within the existing Israeli state—that is, the creation of state governance that gives meaningful expression to the national aspirations of a diversity of populations with radically divergent ideas of the nature and purpose of a state that exists within a tiny territory.</p>
Tue, 14 Aug 2018 08:33:26 -0400Benjamin Wittes15683Fearing Risk; Fearing Reality
https://www.lawfareblog.com/fearing-risk-fearing-reality
<p>Shortly after the 9/11 attacks, I attended a conference in Bozeman, Mont. Bozeman is a delightful place in the southeast corner of the state. It's home to a university and close to Yellowstone National Park. In late summer (when I went) it's a magical area of the country. But it is also (forgive me for saying so) pretty much in the middle of nowhere. Flights go from Bozeman to Minneapolis, Salt Lake City, Denver—maybe a few other places as well, but you get the idea. The jets that fly there are generally smaller, and they don't go too far away.</p>
<p>The recent outcry over the TSA’s initiative to reassess deployment of its resources is based on flawed logic, and one simple experience I had in Bozeman illustrates why.</p>
<p>Still, Bozeman had its TSA station, just like every other airport in post-9/11 America. I remember it pretty well because of the experience I had that day 10 years ago as I left the conference. One of my fellow attendees, an older woman, was a federal judge. And yet she was pulled aside for secondary screening and the Transportation Security Administration spent five to seven minutes going through her luggage (much to her embarassment, I imagine).</p>
<p>I tell this story because it makes a point—that every minute TSA officials spent doing that secondary screening was an utter waste of time and resources. It was a waste on two grounds: First, it was a waste at the individual level because this particular person—a federal judge—was absolutely, positively of zero threat to aviation. Perhaps that could have been surmised by looking at her, an older African-American woman, no more than 5 feet 5 inches tall; but certainly her status as a federal judge could have been determined with a simple identification. But, second, it was also a waste because Bozeman was not going to be a source of onward terrorist threats. To get there in the first instance, terrorists would have had to either cross the U.S. border with Canada by car or fly into Bozeman from some other venue. And in flying out of Bozeman as part of an attempted attack, they would be systematically threatening fewer people by traveling in smaller planes that would do less damage.</p>
<p>Is the risk in Bozeman zero? Of course not. But anyone who studies risk assessment knows that zero risk is fundamentally impossible to achieve. We can only make comparative risk-based decisions and by any measure Bozeman is a low-risk venue.</p>
<p>This is why it is so sad that the <a href="https://www.washingtonpost.com/local/trafficandcommuting/tsa-mulls-a-plan-to-eliminate-security-checkpoints-at-150-smaller-airports/2018/08/01/66de850c-95cc-11e8-810c-5fa705927d54_story.html?utm_term=.61e7674d0737">TSA's mere consideration of modifying staff deployment to take account of the reduced risk at smaller airports</a> was so quickly derided. To understand this, you don't have to agree with my colleague, <a href="https://www.washingtonpost.com/news/posteverything/wp/2018/08/07/dont-fear-the-tsa-cutting-airport-security-be-glad-that-theyre-talking-about-it/?utm_term=.5c317708edd2">Bruce Schnier,</a> that all TSA activity is security theater. All you have to do is recognize that all risk is relative and that resources are not infinite. There is no reason—none at all—why the TSA should not be studying this problem. I don't have the data the agency does to make the assessment—but in the end, if the risk reduction is minimal and the costs are overly high, it rightly should consider changing its deployment of resources. Sadly, <a href="https://www.cbsnews.com/news/tsa-is-not-dropping-security-screening-at-small-airports/">the security freak-out has already forced the TSA to back down</a>. But the United States will never get the right mix of security and freedom if problems aren't looked at rationally.</p>
Tue, 14 Aug 2018 07:00:02 -0400Paul Rosenzweig15675The Lawfare Podcast: A Worthwhile Canadian Dust-Up
https://www.lawfareblog.com/lawfare-podcast-worthwhile-canadian-dust
<p>Canada and Saudi Arabia have been at loggerheads over the past week ever since the Canadian Foreign Minister condemned Saudi Arabia’s arrest of Samar Badawi, a human rights activist. Saudi Arabia's reactions were extreme, including expelling the Canadian ambassador to Saudi Arabia, halting trade negotiations and the pulling of the Saudi Arabian ambassador for diplomatic consultation.</p>
<p>To sort this all out, <em>Lawfare</em> senior editor Shannon Togawa Mercer spoke to Scott Anderson, former diplomat and international lawyer, and Canadian professors Stephanie Carvin of The Intrepid Podcast and Carleton University, Bessma Momani of the Stimpson Center, and Thomas Juneau of the University of Ottowa.</p>
<p>They spoke about Saudi Arabian and Canadian strategy, international legal considerations and what comes next.</p>
<p><iframe allowfullscreen="" height="90" mozallowfullscreen="" msallowfullscreen="" oallowfullscreen="" scrolling="no" src="//html5-player.libsyn.com/embed/episode/id/6921852/height/90/theme/custom/autoplay/no/autonext/no/thumbnail/yes/preload/no/no_addthis/no/direction/backward/render-playlist/no/custom-color/87A93A/" style="border: none" webkitallowfullscreen="" width="100%"></iframe></p>
Mon, 13 Aug 2018 17:38:42 -0400Mikhaila R. Fogel15682Doe v. Mattis and the Right of Citizens to Return to the United States
https://www.lawfareblog.com/doe-v-mattis-and-right-citizens-return-united-states
<p>A joint status report is expected Monday in <em>Doe v. Mattis</em>, in which the United States and the ACLU are locked in legal battle over the fate of an unnamed U.S.-Saudi dual citizen whom the U.S. alleges to be an enemy combatant captured in Syria. The case presents lots of interesting legal issues, many of which Bobby Chesney and Steve Vladeck have covered with their usual insight and attention to detail (available <a href="https://www.lawfareblog.com/tagged/doe-v-mattis">here</a>). The parties are negotiating the possibility of Doe being released into Syria, and thus the case may end soon. It is not publicly known what precisely is at stake in the negotiations, but one possibility is that there is a dispute over whether the government must provide Doe with a passport or other document enabling him to return to the United States if he wishes or to facilitate travel elsewhere in the world. If citizen Doe seeks a U.S. passport, can his own government constitutionally say no? </p>
<p>As important as the freedom of movement is to citizens in our democracy (indeed, to human beings anywhere), there is no explicit textual reference to it in the U.S. Constitution. The Articles of Confederation contained a right to “free ingress and regress,” but this was removed from the final draft of the Constitution without any recorded debate. Nevertheless, courts have routinely protected this right. The strength of this protection is contingent on where the traveler happens to be going. </p>
<p>Domestic—i.e. interstate—travel enjoys the protection of a fundamental right, and the courts strictly scrutinize any attempt by the state to restrict it. But as <a href="https://www.press.umich.edu/813459/mrs_shipleys_ghost/">I note in a book</a> on the subject, no one seems to be able or willing to pinpoint the constitutional source that provides this protection, ascribed over time to various clauses and structural features of the Constitution. When it comes to international travel, the legal protection is less generous, with courts essentially adopting a procedural due process stance on international travel restrictions with the usual thumb on the scales for foreign affairs and national security considerations. (<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1111609">I have argued</a> that there is a fundamental right to international travel that should make its restriction subject to strict scrutiny, too, but I’m pretty alone in this view and it is not now the law.)</p>
<p>None of this would matter if the passport had not evolved over time into what amounts to a license to travel abroad. As such, the constitutional question of access to one often reduces to the usual issues of notice, a chance to be heard and the timing of state action. An additional wrinkle, perhaps unique to passports, comes when the state revokes or cancels a passport when the citizen is already abroad. <a href="https://www.theatlantic.com/magazine/archive/1863/12/the-man-without-a-country/308751/">Edward Everett Hale’s great story “The Man Without a Country”</a> notwithstanding, courts have repeatedly denied the government any power to banish its citizens, even though protection from exile is also not a right found in the text of the Constitution. </p>
<p>So a complete answer may well depend on where John Doe happens to be if he applies for a passport and what he seeks to do with it. Assuming the U.S. government wishes to turn him down, such a denial is on the weakest ground if Doe is seeking to return to the United States. That may be too close to exile, since <a href="https://www.law.cornell.edu/uscode/text/8/1185">8 U.S.C. 1185(b)</a> makes it unlawful “for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.” Assessing a few Cold War-era cases helps to frame the issues that Judge Tanya Chutkan, presiding in the <em>Doe</em> case, might have to consider. </p>
<p>There was a time when passport-less reentry was not only unlawful but also criminal. Denied a passport to travel to Havana in the early 1960s, journalist William Worthy traveled there anyway. Upon arrival in Miami after leaving Cuba, he was indicted for violating this provision (which, at the time, carried a penalty of $5,000 and/or five years’ imprisonment). The initial denial was upheld in <em><a href="https://www.leagle.com/decision/19591175270f2d9052991">Worthy v. Herter</a></em> by the D.C. Circuit, which had little problem affirming the state’s power to restrict travel <em>out</em> of the country. But in <em><a href="https://law.justia.com/cases/federal/appellate-courts/F2/328/386/418522/">Worthy v. United States</a></em>, an opinion that has never been distinguished or even subject to judicial doubt, the Fifth Circuit held that “it is inherent in the concept of citizenship that the citizen, when absent from the country to which he owes allegiance, has a right to return, again to set foot on its soil.” The state could not constitutionally require him “to choose between banishment or expatriation on the one hand or crossing the border on the other hand, being faced with criminal punishment and the loss of some of the rights and privileges of citizenship as a felon.” Ironically, the United States has full authority to drag Doe home in an earnest effort to lock him up, but it cannot lock him out.</p>
<p>On the other hand, if Doe is seeking the passport to travel elsewhere or simply to keep his options open, the government is on stronger ground. Philip Agee was a rogue CIA agent who exposed the identities of roughly 250 intelligence officers and assets. (Agee attributed his disillusionment in part to feelings of guilt at his complicity with CIA-backed torture.) The United States revoked his passport with the singular intention of forcing him back home, where, as the solicitor general told the Supreme Court during oral argument in <em><a href="https://www.oyez.org/cases/1980/80-83">Haig v. Agee</a></em>, “He would not get out again.” (Contra Worthy’s case, there was no option for criminal prosecution; Agee’s case led to the Intelligence Identities Protection Act of 1982, a statute with which Scooter Libby has a nodding acquaintance.) Writing for himself and six other justices, Chief Justice Warren Burger held that “when there is a substantial likelihood of ‘serious damage’ to national security or foreign policy as a result of a passport holder’s activities in foreign countries, the Government may take action to ensure that the holder may not exploit the sponsorship of his travels by the United States.” </p>
<p>The Court held that Agee’s right to due process would be satisfied by a post-revocation hearing if he were willing to come home to have one. Agee also asserted First Amendment interests, relying on Supreme Court precedents (such as <em><a href="https://www.oyez.org/cases/1957/481">Kent v. Dulles</a></em> and <em><a href="https://www.oyez.org/cases/1963/461">Aptheker v. Secretary of State</a></em>) that held that travel restrictions could implicate protected freedoms of speech, religion and assembly. These the court easily distinguished, since it was Agee’s conduct that was damaging national security (and that led to the government revocation), not his beliefs or associations. Even if the content of his speech was implicated, this looked too much like the court’s favorite example in such contexts: “publication of the sailing dates of transports or the number and location of troops” to escape restriction. Keeping in mind William Worthy’s travels, there is irony here, too; Agee was not overly keen to travel back to the United States. Agee <a href="https://www.nytimes.com/2008/01/10/obituaries/10agee.html">died in Havana</a>.</p>
<p>Since Doe is reported to be a dual citizen of both the United States and Saudi Arabia, the question of statelessness is not squarely presented here (and there is no evidence that the U.S. wishes to take away his citizenship). But citizenship-stripping is also a tool that the U.S. and other governments appear to value and have struggled to acquire with varying degrees of success. The United States negotiated the <a href="https://www.nytimes.com/2004/10/11/international/middleeast/us-returns-detainee-to-saudi-arabia-after-3-years.html">renunciation of Yaser Hamdi’s citizenship</a> in exchange for his release, an effort to avoid the due process hearing the Supreme Court required in <em><a href="https://www.oyez.org/cases/2003/03-6696">Hamdi v. Rumsfeld</a></em>. This negotiation was necessary because the Supreme Court has repeatedly and conclusively ruled (as it did in 1958 in <em><a href="https://www.oyez.org/cases/1956/70">Trop v. Dulles</a></em>) that involuntary expatriation “is not a weapon that the Government may use to express its displeasure at a citizen’s conduct, however reprehensible that conduct may be.” The <a href="https://www.voanews.com/a/britain-stips-is-fighters-of-citizenship/3964920.html">United Kingdom</a>, on the other hand, has asserted the statutory power to strip <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/518120/David_Anderson_QC_-_CITIZENSHIP_REMOVAL__web_.pdf">naturalized British citizens</a> who hold, or may have only the <em>reasonable</em> <em>possibility</em> of acquiring, citizenship elsewhere. </p>
<p>There is much to criticize in “the evil of statelessness,” as the U.K. Supreme Court described it in <em><a href="https://www.supremecourt.uk/cases/docs/uksc-2012-0129-judgment.pdf">Secretary of State for the Home Department v. Al-Jedda</a></em>. And few considered involuntary expatriation worthy of any support when it was a power mostly associated with repressive regimes keen to exile dissidents such as <a href="https://diva.sfsu.edu/collections/sfbatv/bundles/190878">Alexander Solzhenitsyn</a>, welcomed to the United States after his banishment in 1974 from the Soviet Union. But passport denials (like <a href="http://watchlistlaw.com/sites/default/files/mohamed/mohamed-dkt70.pdf">terrorist watch</a> <a href="http://watchlistlaw.com/sites/default/files/mohamed/mohamed-dkt70.pdf">lists</a>) raise similar issues that go to the heart of what it means to be a citizen seeking freedom of movement against the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1604602">bureaucratic mechanics</a> of international travel restrictions created in the 20th century and <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3100423">perfected in digital form</a> in the 21st. </p>
Mon, 13 Aug 2018 15:29:57 -0400Jeffrey Kahn15681Today’s Headlines and Commentary
https://www.lawfareblog.com/todays-headlines-and-commentary-1613
<p><em>This Headlines and Commentary post is shorter than usual. Our normal coverage will resume tomorrow.</em></p>
<p><strong>The Pentagon is considering a new system for awarding contracts to defense manufacturers, </strong><a href="https://www.washingtonpost.com/world/national-security/the-pentagon-is-rethinking-its-multibillion-dollar-relationship-with-us-defense-contractors-to-stress-supply-chain-security/2018/08/12/31d63a06-9a79-11e8-b60b-1c897f17e185_story.html?utm_term=.47b68de726f0">reports</a> the Washington Post. The approach would incentivize greater supply-chain security.</p>
<p><strong>Former White House adviser Omarosa Manigault Newman recorded a conversation in the Situation Room</strong>, <a href="https://www.nytimes.com/2018/08/12/us/politics/omarosa-trump-tape.html">according to</a> the New York Times. Axios <a href="https://www.axios.com/omarosa-secret-situation-room-tape-legal-national-security-f8e5de57-cb3f-41b7-82d0-e11927b3f6c1.html">rounded</a> up expert views on whether that carries legal consequences.</p>
<p><strong>The FBI fired senior counterintelligence officer Peter Strzok for violating bureau policies, </strong><a href="https://www.nytimes.com/2018/08/13/us/politics/peter-strzok-fired-fbi.html">reports</a> the Times.</p>
<p><strong>Turkey’s currency is suffering amid government mismanagement and deteriorating relations with the United States, </strong><a href="https://www.wsj.com/articles/turkish-drama-pummels-emerging-markets-around-the-world-1534139518">says</a> the Wall Street Journal.</p>
<p><strong>North and South Korea agreed to a summit in Pyongyang to discuss dismantling weapons, </strong><a href="https://www.nytimes.com/2018/08/13/world/asia/north-south-korea-third-summit.html?rref=collection%2Fsectioncollection%2Fworld">reports</a> the Times. The date of the summit has yet to be determined.</p>
<p>Margaret Coker <a href="https://www.nytimes.com/2018/08/12/world/middleeast/iraqi-spy-isis.html?rref=collection%2Fsectioncollection%2Fworld">wrote</a> for the Times <strong>about an Iraqi spy who infiltrated the Islamic State and thwarted dozens of terrorist attacks.</strong></p>
<p align="center"><strong>Last Weekend on <em>Lawfare</em></strong></p>
<p>Amber Herrle <a href="https://www.lawfareblog.com/what-realistically-expect-when-youre-expecting-nazis">predicted</a> that turnout at Sunday’s Unite the Right rally would be lower than the hundreds of white supremacists that press accounts were suggesting. (She was right.)</p>
<p>Robert Farley <a href="https://www.lawfareblog.com/it-time-space-force">weighed</a> the pros and cons of President Trump’s proposed Space Force.</p>
<p><em><a href="mailto:matthew.kahn@lawfareblog.com">Email</a> the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.</em></p>
Mon, 13 Aug 2018 13:16:09 -0400Matthew Kahn15680The Week That Will Be
https://www.lawfareblog.com/week-will-be-214
<p align="center"><strong><em>Event Announcements (More details on the</em></strong> <a href="https://www.lawfareblog.com/upcoming-events"><strong><em>Events Calendar</em></strong></a><strong><em>)</em></strong></p>
<p><em>Tuesday, Aug. 14 at 12:00 p.m.</em>: The Heritage Foundation will host a panel discussion on “<strong>Judge Brett Kavanaugh’s Most Significant Rulings.”</strong> Discussants will include Jamil Jaffer, Jennifer Mascott, Chris Walker and Justin Walker. Elizabeth Slattery will moderate the discussion. <a href="https://www.heritage.org/courts/event/what-kind-judge-brett-kavanaugh-closer-look-his-cases">RSVP</a> to attend or <a href="https://www.heritage.org/courts/event/what-kind-judge-brett-kavanaugh-closer-look-his-cases">watch</a> the event live.</p>
<p><em>Wednesday, Aug. 15 at 12:00 p.m.</em>: The Hudson Institute will host a panel discussion on <strong>“Iran: Protests, Sanctions, and Regime Viability.”</strong> Panelists will include Michael Pregent, Alireza Nader, Behnam Ben Taleblu and Mariam Memarsadeghi. <a href="https://www.hudson.org/events/1587-iran-protests-sanctions-and-regime-viability82018">Register</a> to attend.</p>
<p><em>Thursday, Aug. 16 at 10:00 a.m.</em>: The Atlantic Council and the Brazilian Center for International Relations will host a conference call on <strong>“Brazil’s Upcoming Presidential Election”</strong> on the day the campaign begins. Conference-call discussants will include Ricardo Sennes, Roberto Teixeira da Costa, Henrique Rzezinski, and Roberta Braga. <a href="http://www.atlanticcouncil.org/events/upcoming-events/detail/conference-call-brazil%E2%80%99s-election-takes-shape">Register</a> to listen in.</p>
<p align="center"><strong><em>Employment Announcements (More details on the </em></strong><a href="http://www.lawfareblog.com/lawfare-job-board"><strong><em>Job Board</em></strong></a><strong><em>)</em></strong></p>
<p>The following are job announcements of potential interest to <em>Lawfare</em> readers. If you have an announcement to add to the page, <a href="mailto:matthew.kahn@lawfareblog.com?subject=Job%20Board%20Request" target="_blank">email us</a>.</p>
<p><a href="https://www.cia.gov/careers/opportunities/cia-jobs/index.html#enterprise"><strong>Attorney, Central Intelligence Agency</strong></a></p>
<blockquote><p>The Central Intelligence Agency is seeking highly qualified candidates to join CIA’s Office of General Counsel. We are actively recruiting exceptional attorneys with a wide variety of backgrounds and experience levels. We seek attorneys with experience in areas including government contracts, technology and cyber-related law, national security law, employment, ethics, privacy, litigation, and federal appropriations law, among others. Prior national security experience is welcome but not required. If this opportunity sounds interesting to you, please visit our <a href="https://www.cia.gov/careers/opportunities/cia-jobs/index.html#enterprise">website</a> for additional information and application instructions. </p>
</blockquote>
<p><strong><a href="http://nuclearsecurityworkinggroup.org/gw-congressional-nuclear-security-fellowship/">GW Congressional Nuclear Security Fellowship</a></strong></p>
<blockquote style="font-size: 14.4px;"><p><strong>About the NSWG: </strong>The NSWG works behind-the-scenes to promote bipartisan consensus on nuclear issues and provide policymakers and the NGO community with the expertise it needs to make informed decisions on issues ranging from U.S.-Russia nuclear cooperation to Iran’s nuclear program. The NSWG’s leadership is comprised of foreign policy experts from the Executive and Legislative branches of government, as well as active and retired military officials and leading scholars in the field of nuclear security.</p>
<p><strong>Website: </strong><a href="http://nuclearsecurityworkinggroup.org/" target="_blank">http://nuclearsecurityworkinggroup.org/</a></p>
<p><strong>Overview </strong></p>
<p>The Congressional Nuclear Security Fellowship provides highly qualified up-and-coming national security professionals with an opportunity to spend a year in the Congress working to promote bipartisan dialogue on nuclear issues.</p>
<p><strong>Responsibilities</strong></p>
<p>Nuclear Security Fellows serve full-time in a House or Senate office, typically joining at the start of the legislative session. Fellows are treated as a member of the staff and are assigned responsibilities and duties based on the needs of the office. Typical Fellow responsibilities include preparing senior staff and Members/Senators for hearings, meetings, and briefings; advising office staff on a range of national security issues, including nuclear issues; answering constituent inquiries; and contributing to the legislative and policy priorities of their Members/Senators, under the direction of senior office staffers.</p>
<p>Fellows are also expected to encourage greater bipartisan discourse on nuclear issues by organizing briefings and events on timely nuclear policy issues, engaging their colleagues from both sides of the aisle and deepening their professional relationships with the Nuclear Security Working Group and the broader policy community.</p>
<p><strong>Eligibility</strong></p>
<ul><li>Fellows are selected through a competitive process on the basis of their professional experience, interpersonal and communications skills, specialized knowledge and professional references.</li>
<li>While Fellows do not need extensive experience in nuclear policy, qualified applicants will have a strong record of professional achievement in national security roles in government, the military, academia or the private sector.</li>
<li>Ideal candidates will also have an advanced degree in a relevant field, including international affairs, economics, defense planning, military operations or an area of the physical sciences with policy relevance.</li>
<li>Applicants must be U.S. citizens at the time the Fellowship begins.</li>
<li>If applicants apply while enrolled in an academic program, they must have completed their studies by the time the fellowship begins.</li>
<li>Applicants may not be concurrent employees of the Federal government or Federal contractors at the time the fellowship begins.</li>
</ul><p><strong>Fellowship Award</strong></p>
<p>Fellows are awarded a stipend of up to $85,000, based on past experience. Fellows also receive an annual travel allowance to facilitate travel to professional meetings and their Member’s district or state. Fellows receive their stipends as independent contractors, are not eligible for benefits and are not considered employees of the George Washington University or the Congress.</p>
<p><strong>Timeline</strong></p>
<ul><li>The 2019 fellowship application opens in June</li>
<li>Applications are due August 31, 2018</li>
<li>Multiple interviews are conducted through November</li>
<li>Hosting offices make selections in late November/early December</li>
<li>Fellows begin placements in January</li>
</ul><p><strong>Application and Placement Process</strong></p>
<ul><li>Interested candidates who meet the eligibility requirements can apply online</li>
<li>The application consists of
<ul><li>A complete application questionnaire</li>
<li>A resume</li>
<li>A one-page statement of interest</li>
<li>A letter of recommendation from a colleague with first-hand knowledge of the individual’s professional experience and qualifications</li>
<li>(Please note, the application asks applicants to submit information for three professional references, one of whom may also contribute a letter.)</li>
</ul></li>
<li>NSWG staff conduct initial interviews to assess an applicant’s fit and qualifications.</li>
<li>Hosting offices interview finalists and extend offers.</li>
<li>Individuals who accept a fellowship must agree to serve for a full year.</li>
<li>Direct all application materials to <a href="mailto:nswg@email.gwu.edu" target="_blank">nswg@email.gwu.edu</a></li>
</ul></blockquote>
<p><strong>Task Force on Extremism in Fragile States, </strong>U.S. Institute of Peace</p>
<blockquote><p>The United States Institute of Peace has been charged by Congress with developing a “comprehensive plan to prevent the underlying causes of extremism in fragile states in the Sahel, Horn of Africa, and Near East.” To fulfill this mandate, the USIP has convened the Task Force on Extremism in Fragile States, co-chaired by Gov. Tom Kean and Rep. Hamilton and including, among others, Sec. Madeleine Albright, Sen. Kelly Ayotte, Amb. Bill Burns, and Steve Hadley.</p>
<p>USIP is seeking experts in terrorism, extremism, state fragility, and/or U.S. policies dealing with these issues in the relevant areas to conduct research and draft briefing documents in support of the Task Force’s final report. In particular, the Task Force seeks experts who can help produce research papers dealing with three main topics: the presence, strategy, and future evolution of extremist presence in the designated regions; the root causes and drivers of extremism, particularly in fragile states, and their relation to fragility; USG policy and programs relating to countering extremism or providing stabilization assistance in the target countries. The ideal candidates will have a proven ability to conduct and publish original policy analysis on terrorism, extremism, and/or state fragility and will have significant knowledge of related topics, including U.S. national security strategy, conflict prevention, and global development strategy and policy.</p>
<p>The work of the Task Force will run from May through December 2018. Short-term, part, and full-time positions will be considered for qualified candidates. For more information, contact the Task Force’s Executive Director, Blaise Misztal: <a href="mailto:bmisztal@usip.org" id="m_-2109640643270835792m_9182764580872953851LPlnk717616" target="_blank">bmisztal@usip.org</a>.</p>
</blockquote>
<p><strong><a href="https://www.usajobs.gov/GetJob/ViewDetails/492141500">Associate General Counsel</a>, </strong>Office of the Director of National Intelligence</p>
<blockquote><h3 style="clear: both;">Summary</h3>
<div>
<p><strong>Position Information</strong><br />
This is an opportunity for:</p>
<ul><li>An internal or external candidate to fill a GS-15 cadre position.</li>
<li>A Federal Government employee to serve on a two-year reimbursable detail assignment in the ODNI. The detail assignment may be extended an additional year if all parties agree.</li>
</ul><p><strong>Who May Apply</strong><br />
Current GS employees at the same grade or one grade lower than the advertised position grade may apply.<br />
Former members of the Peace Corps may be considered for ODNI employment only if five full years have elapsed since separation from the Peace Corps.</p>
<ul><li>For a cadre assignment:
<ul><li>Current ODNI permanent cadre.</li>
<li>Current ODNI Staff Reserve Employees. (A staff reserve employee who currently occupies this position may not apply.)</li>
<li>Current Federal Government employees. (Current GS employees at the same grade or one grade lower than the advertised position grade may apply. )</li>
<li>Candidates outside the Federal Government.</li>
</ul></li>
<li>For a detailee assignment:
<ul><li>Current Federal Government employees. (Current GS employees at the same grade or one grade lower than the advertised position grade may apply. )</li>
</ul></li>
</ul><p><strong>Salary Determination</strong></p>
<ul><li>The ODNI uses a rank-in-person system in which rank is attached to the individual. A selected ODNI candidate or other Federal Government candidate will be assigned to the position at the employee's current GS grade and salary.</li>
<li>For a selected non-Federal Government candidate, salary will be established within the salary range listed above, based on education and experience.</li>
<li>A current Federal Government employee, selected for a detail, will be assigned to the position at his or her current grade and salary.</li>
</ul><p><strong>Component Mission</strong><br />
The Office of General Counsel (OGC) of the Office of the Director of National Intelligence (ODNI) provides legal advice and counsel to the Director of National Intelligence (DNI) and other ODNI officials on a wide range of legal issues to include intelligence and national security law; procurement and acquisition law; personnel law; government ethics, budget, and fiscal law; general administrative law; legislative support; government information practices (Freedom of Information Act/Privacy Act); and intellectual property law.</p>
<h3 style="clear:both;">Responsibilities</h3>
<div id="duties">
<p><strong>Major Duties and Responsibilities (MDRs)</strong></p>
<ul><li>THE OFFICE OF THE GENERAL COUNSEL SEEKS ATTORNEYS IN THE FOLLOWING AREAS:</li>
<li>Acquisitions and Appropriations: Applicants should have in-depth knowledge and experience with both federal budget and execution and research and development programs. Preferred qualifications include a demonstrated expertise in the following areas: (a) National Intelligence Program budget and execution; (b) general acquisition and procurement law and policy, including major system acquisitions, source selections, and contract disputes and (c) intellectual property law, including patents, copyright and trademarks.</li>
<li>Employment Law: Applicants should have demonstrated experience providing expert legal advice on EEO matters, human resources issues, and general employment related matters. Preferred qualifications include demonstrated experience appearing in litigation before the Equal Employment Opportunity Commission (EEOC) on matters arising under federal statutes, including, but not limited to, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and other laws administered by the EEOC; including preparing pleadings, conducting and defending depositions, engaging in discovery, and representing the agency in court proceedings.</li>
<li><strong>Please Note:</strong></li>
<li>Attorneys in ODNI OGC rotate portfolios on a regular basis to provide legal support and guidance on unique and complex issues. Accordingly, attorneys are expected to provide expert legal counsel, advice and support across a wide range of legal issues, to include intelligence and national security law, FISA, litigation, privacy and civil liberties, international law, procurement and acquisition law, personnel law, government ethics, appropriations and fiscal law, administrative law, legislative issues, government information practices (Freedom of Information Act/Privacy Act), and intellectual property. To that end, ODNI OGC is looking for attorneys who are well-rounded, have broad legal experience, and with an interest in a wide array of practice areas relevant to the intelligence community. Potentially one or more candidates will be selected from this advertisement.</li>
</ul></div>
<div id="travelrequired">
<h3 style="clear:both;">Travel Required</h3>
<p>Occasional travel - You may be expected to travel for this position.</p>
</div>
<div>
<div id="supervisory-status">
<h5 style="clear:both;"><span data-title="Determines if you will be a supervisor." rel="tooltip">Supervisory status</span></h5>
<p>No</p>
<h2 style="clear:both;">Requirements</h2>
<h3 style="clear:both;">Conditions of Employment</h3>
<ul><li>Provide expert legal advice and guidance to senior Office of the Director of National Intelligence (ODNI) leadership on complex areas of law affecting ODNI's duties and responsibilities under the National Security Act, Presidential directives, Executive Orders, and other related laws and policies.</li>
<li>Provide expert legal counsel to support the development, review, and preparation of United States (US) Government-wide and IC-wide policies, procedures, guidelines, rules, and standards.</li>
<li>Counsel clients, including senior ODNI leaders, on complex legal issues and provide innovative and highly effective guidance on possible courses of action; expertly prepare complex, high profile, and persuasive legal documents on complex legal issues for a variety of internal and external recipients.</li>
<li>Expertly conduct or direct legal research and analysis on extremely complex or sensitive legal issues as well as on laws, regulations, and policies that have a significant impact on ODNI and IC interests and brief ODNI leadership on issues and findings.</li>
<li>Provide timely reviews of planned ODNI and IC activities for compliance with the Constitution and laws of the US, Executive Orders, and other applicable regulations and policies affecting ODNI and the IC and brief ODNI leaders on potential legal and policy issues, and develop solutions to address difficult legal problems having potential high-level or large-scale impact on the ODNI's or the IC missions or activities.</li>
<li>Expertly analyze statutes, bills, reports, and Congressional materials, as well as proposed Executive Branch orders, directives, regulations, and policies, to determine their effect on the ODNI and the IC; provide expert advice and counsel to senior management on legislative proposals, Congressional testimony, and related documents.</li>
<li>Provide expert briefings and advocate for ODNI and IC views on particular matters to Executive Branch entities, Congress, and private sector entities; cogently brief senior ODNI leaders on legal issues that relate to or effect ODNI and IC activities.</li>
<li>Maintain productive working relationships with ODNI elements, IC colleagues, executive agencies, congressional personnel and members, congressional committees, and use these relationships to advocate ODNI and IC positions, support a continuing dialog, and provide insight into ongoing and planned ODNI and IC activities.</li>
</ul><div id="qualifications">
<h3 style="clear:both;">Qualifications</h3>
<div>
<p><strong>Mandatory and Educational Requirements</strong></p>
<ul><li>Superior multi-disciplinary legal skills and experience dealing with complex legal issues, as well as an expert ability to interpret laws, regulations, judicial decisions, Executive Orders, and statutes involving complex concepts and issues.</li>
<li>Superior research abilities, including the ability to quickly integrate and synthesize the facts and law to make legally sound decisions, and recommendations pertaining to the most complex situations, or in the context of ambiguous or ill-defined situations.</li>
<li>Demonstrated ability to resolve complex legal problems, to think creatively to solve complex and novel legal issues, and to gain consensus among disparate organizations on legal and national security issues of common concern.</li>
<li>Superior ability to routinely communicate, orally and in writing, the most complex concepts and issues in a manner well matched to the audience being addressed, and to consistently make sound, timely decisions in complex, ambiguous or ill-defined situations.</li>
<li>Superior interpersonal, organizational, and problem solving skills, including the ability to work effectively both independently and in a collaborative environment and superior creative problem solving skills.</li>
<li>Expert legal knowledge obtained through the completion of a Doctorate of Jurisprudence or Bachelor of Laws degree from an American Bar Association-accredited law school, and active membership of the Bar of the highest court of a US State, Territory, Commonwealth, or the District of Columbia.</li>
</ul></div>
</div>
<div>
<h3 style="clear:both;">Education</h3>
<p>This job does not have an education qualification requirement.</p>
</div>
<div id="additional-information">
<h3 style="clear:both;">Additional information</h3>
<div aria-expanded="true" data-behavior="joa-read-more" data-object="reveal-more" data-readmore="" id="rmjs-1">
<p><strong>The ODNI is an equal opportunity employer and abides by applicable employment laws and regulations.</strong></p>
<p><strong>REASONABLE ACCOMMODATIONS FOR PERSONS WITH DISABILITIES:</strong> The ODNI provides reasonable accommodations to otherwise qualified applicants with disabilities. <strong>IF YOU NEED A REASONABLE ACCOMMODATION</strong> for any part of the application and hiring process, please notify the Intelligence Community Equal Employment Opportunity and Diversity Office Representative by classified email at DNI-EEOD-RA-ACF@exchange.cia.ic.gov, by unclassified email at DNI-EEOD@dni.gov, by telephone at 703-874-8360, by TTY at 703-874-8554, or by FAX at 703-874-8651. Your request for reasonable accommodation will be addressed on a case-by-case basis. <strong>PLEASE DO NOT SUBMIT YOUR APPLICATION TO THE EEOD EMAIL ADDRESS. THIS EMAIL IS FOR REASONABLE ACCOMMODATION REQUESTS ONLY. PLEASE SUBMIT YOUR APPLICATION VIA THE EMAIL ADDRESS PROVIDED IN THE 'HOW TO APPLY' SECTION BELOW.</strong></p>
<p><strong>JOB INTERVIEW TRAVEL</strong>: Candidates from outside the Washington, D.C., area may be selected for a telephone, teleconference, or in-person interview. If selected for an in-person interview, the ODNI hiring office will pay for travel by commercial carrier (economy class) or reimburse for privately owned vehicle (POV) mileage. If applicable, the candidate also will be reimbursed at a flat rate for commercial lodging and per diem.</p>
<h3 style="clear:both;">How You Will Be Evaluated</h3>
<div aria-expanded="true" data-behavior="joa-read-more" data-object="reveal-more" data-readmore="" id="rmjs-2">
<p>You will be evaluated for this job based on how well you meet the qualifications above.</p>
<p>Applicants are encouraged to carefully review the position description and required KSAs and then construct their resumes to highlight their most relevant and significant experience and education for this job opportunity. The description should include examples that detail the level and complexity of the work performed. Applicants will also be evaluated on their narrative responses to the KSAs. The best qualified applicants will be further evaluated through an interview process.</p>
<h3 style="clear:both;">Background checks and security clearance</h3>
<div>
<div id="security-clearance">
<h5 style="clear:both;">Security clearance</h5>
<p><a href="https://www.usajobs.gov/Help/faq/job-announcement/security-clearances/" target="_blank">Top Secret/SCI</a></p>
<h2 style="clear:both;">Required Documents</h2>
<div>
<p><u><strong>All Applicants:</strong></u></p>
<p><strong>APPLICATION PACKAGES MUST CONTAIN ALL ITEMS LISTED ABOVE. AN INCOMPLETE APPLICATION PACKAGE WILL BE INELIGIBLE FOR CONSIDERATION.</strong></p>
<p>Your application MUST be received by midnight on the closing date of this announcement. Applications received after the closing date will NOT be eligible for consideration. To verify receipt of your application package ONLY, you may call or email at Phone: 703-275-3799; Email: Recruitment_TeamA@dni.gov.</p>
</div>
</div>
</div>
</div>
</div>
</div>
</div>
</div>
</div>
</blockquote>
<div>
<p>Director, Rework America Task Force </p>
<blockquote><p><strong>TITLE: Director</strong></p>
<p><strong>REPORT: Senior Principal, Rework America Task Force</strong></p>
<p><strong>LOCATION: New York, NY or Washington, DC </strong></p>
<p><strong>About Markle Foundation:</strong></p>
<p>Markle is a private foundation with a long commitment to deploying the power of communications and information technologies for public benefit. Markle achieves its objectives by directly operating projects in its areas of inquiry and does not make grants in response to unsolicited proposals. Markle has a demonstrated history of impact in its past work. More information is available at www.markle.org.</p>
<p><strong>REWORK AMERICA TASK FORCE: A Markle Initiative.</strong></p>
<p>The Rework America Task Force (RATF) seeks to transform our labor market from one solely focused on traditional credentials like degrees and work history, to one rooted in the skills needed for the jobs of the 21st century. We will harness the same forces disrupting our economy, from Big Data to Artificial Intelligence, to connect all Americans - especially the almost seven in ten Americans without a college degree - to new opportunities and training for in-demand jobs. We will advance a modern labor market that aligns the skills of our workforce to the needs of our employers, keeping American businesses competitive and giving American workers clear pathways to quality jobs over the course of their lives.</p>
<p><strong>Ideal Profile</strong></p>
<p>The RATF team is small, action-oriented and fast-paced. We are passionate about our mission, keen to learn, and enjoy what we do. We’re seeking candidates who excel in relationship-<br />
building, are results-oriented, and have strong research and analytical skills. Given the entrepreneurial nature of the Task Force, all team members execute a diverse portfolio of projects and contribute to the team through execution of pilots, supporting multiple initiatives and collaborating across teams and partner organizations.</p>
<p><strong>Required Competences:</strong></p>
<ul><li>
<p>A demonstrated commitment to meeting a high bar and a history of getting things done even in the face of obstacles, balancing creativity and practical business judgment.</p>
</li>
<li>
<p>A record of success in developing and seeking out the next challenge and thinking outside constraints to get things done, operating with a clear sense of purpose while being comfortable with ambiguity and change.</p>
</li>
<li>
<p>A proven ability to develop and maintain relationships among many different types of people, especially at high-levels, and to apply critical interpersonal and judgment skills to affect outcomes.</p>
</li>
</ul><p><strong>Preferred Competencies:</strong></p>
<ul><li>
<p>Knowledge of workforce and/or education policy issues.</p>
</li>
</ul><p><strong>Responsibilities</strong></p>
<p>The Director will work with the two co-Directors to provide the Rework America Task Force chair, Task Force members and associated Working Groups with substantive guidance and advice surrounding U.S. labor market trends, related impacts of automation and technological advancements, workforce management, worker education and upskilling, trends in technology and Artificial Intelligence, and employer skills-based practices. The Directors drive deliverables from the Task Force to support the Task Force mission of enabling all Americans continued access to the American Dream. The principal responsibilities include:</p>
<ul><li>
<p>Participate in developing the substantive underpinnings for Task Force objectives. Prepare materials, engage experts, supervise work product development and deliverables. </p>
</li>
<li>
<p>Provide advice and assistance to the RATF Chair, in the form of written products, research, articles for publication and RATF meeting materials, as directed. </p>
</li>
<li>
<p>Provide expertise and substantive direction to RATF Working Groups, guiding their outputs consistent with the goals of the RATF generally and the RATF Chair, specifically.</p>
</li>
<li>
<p>Conduct outreach to experts, policymakers, and other relevant actors to inform RATF objectives and outcomes.</p>
</li>
<li>
<p>Collaborate with Task Force staff and contractors as necessary to ensure appropriate subject matter expertise is available to Task Force members and Working Groups. </p>
</li>
<li>
<p>Identify opportunities for the Task Force to engage in the national debate surrounding the future of work and ways to incentivize change in the U.S. labor market.</p>
</li>
<li>
<p>Other tasks and responsibilities as requested or as assigned.</p>
</li>
</ul><p><strong>Job Details</strong></p>
<ul><li>
<p>Status: Full-time</p>
</li>
<li>
<p>Salary: Competitive</p>
</li>
<li>
<p>Travel: Moderate</p>
</li>
<li>
<p>Degree or credential Requirements: None.</p>
</li>
<li>
<p>Markle is committed to creating a diverse and inclusive environment and is proud to be an equal opportunity employer. All applicants receive consideration for employment without regard to race, creed, color, ethnicity, national origin, religion, sex, sexual orientation, gender expression age, physical or mental ability, veteran status, military obligations and marital status.</p>
</li>
<li>
<p>Applying: Please submit cover letter and resume to: RATFapplicants@markle.org, subject line: Director Application</p>
</li>
</ul></blockquote>
<p><strong><a href="https://www.thirdway.org/careers/policy-advisor">Cybersecurity and National Security Policy Advisor</a>,</strong> Third Way</p>
<blockquote><p><strong>Title: Policy Advisor</strong></p>
<p><strong>Report to: National Security Program Director </strong></p>
<p><strong>Location: Washington, D.C.</strong></p>
<p><strong>About Third Way:</strong> Third Way is a national think tank that champions modern center-left ideas. Our agenda is built on the bedrock belief that for political movements to succeed in our political system, they must relentlessly reimagine their policies, strategies, and coalitions. We are fighting for <strong>opportunity</strong>, so everyone has the chance to earn a good life; progress on social issues, so all have the <strong>freedom</strong> to live the lives they choose; and <strong>security</strong>, so we are protected from the global threats of the 21st century.</p>
<p><strong>About the Position:</strong> Third Way is seeking a <strong>Policy Advisor</strong> for the National Security Program to analyze cyber security and national security issues and make policy recommendations. Reporting to the Program Director, this position is part of Third Way’s National Security team. Primary responsibilities include researching, developing and writing policy and message documents on major national security issues before Congress and the Administration with a particular focus in cyber security, national security law, and international treaties and organizations. The policy advisor also represents Third Way at external meetings with policymakers and advocacy organizations. A detailed knowledge of national security issues, very strong research and writing skills, good sense of humor and the ability to work in a fast-paced, collaborative environment are required.</p>
<p><strong>Duties and Responsibilities: </strong></p>
<ul><li>Develop and draft policy products</li>
<li>Conduct in-depth research and distill complex issues into succinct and accessible formats, such as policy memos, idea briefs and opinion pieces.</li>
<li>Draft memos, talking points, Q&amp;A documents, prepare infographics and other presentation and briefing materials on National Security Program products.</li>
<li>Monitor and analyze current events and developments on national security issues.</li>
<li>Research and analyze legislative debates and political developments on such topics as cybersecurity, privacy &amp; surveillance, international technology policy and international agreements.</li>
<li>Monitor online databases, traditional and social media outlets, and reports from government, academia, and advocacy communities to stay abreast of relevant developments.</li>
<li>Represent Third Way and work closely with Congress, the administration, advocacy organizations and other progressive leaders on national security issues.</li>
<li>Other duties as assigned.</li>
</ul><p><strong>Qualifications: </strong></p>
<ul><li>Bachelor’s Degree, graduate or law degree preferred but not required.</li>
<li>A minimum of two years of congressional, federal, journalism, advocacy or other relevant experience.</li>
<li>Demonstrated strength in clear, concise, and persuasive writing especially op-eds and/or policy memos.</li>
<li>Demonstrated knowledge of Congressional processes and foreign policy tools.</li>
<li>Work experience in a team environment with minimal supervision, demonstrating an ability to prioritize and take appropriate action.</li>
<li>Exercise diplomacy in communications with external contacts and staff.</li>
<li>Ability to coordinate multiple projects within specified time frames and multi-task various assignments.</li>
<li>Discretion handling confidential information.</li>
<li>Ability to meet deadlines.</li>
<li>Strong organizational and interpersonal skills.</li>
<li>Excellent computer and MS Office Suite skills.</li>
<li>Ability to solve problems creatively.</li>
</ul><p><strong>Skills, Traits, and Beliefs: </strong></p>
<ul><li><em>Self-starting</em>: Third Way seeks people who see and seize opportunities, take risks, learn from failure, and will bring a sustained passion for our mission.</li>
<li><em>Collaborative</em>: Third Way works in teams—sharing ideas, brainstorming, co-authoring products, and advancing its shared priorities.</li>
<li><em>Creative</em>: Third Way fosters divergent thinking that isn’t afraid to take on the orthodoxies of the left or the right. Team members come up with original insights, find unique ways to look at data, and challenge their preconceptions.</li>
<li><em>Results-oriented</em>: Third Way functions with an organizational commitment to clear objectives, ambitious timelines, accountability for results, and a focus on impact.</li>
</ul></blockquote>
<p><a href="https://www.justice.gov/legal-careers/job/unpaid-law-student-volunteer-academic-year-appellate-staff"><strong>Unpaid Law Student Volunteer</strong></a><strong>,</strong> Appellate Staff of the Civil Division of the U.S. Department of Justice</p>
<blockquote><p><strong>Title: Law Student Volunteer </strong></p>
<p><strong>Division: Appellate Staff of the Civil Division</strong></p>
<p><strong>Term: Academic year</strong></p>
<p><strong>Weeks/Hours: Full- or part-time. </strong>At a minimum, interns must work at least 20 hours per week for at least 10 weeks.</p>
<p><strong>Location: Washington, D.C.</strong></p>
<p><strong>Job Description: </strong>Interns typically perform legal research, write memoranda, and prepare initial drafts of appellate briefs. In addition to case law and treatise research, assignments often entail searching legislative history to aid in statutory interpretation issues. Interns also participate as judges in moot courts with staff attorneys and are encouraged to attend oral arguments in the District of Columbia and Federal Circuits.</p>
<p><strong>Qualifications: </strong>Candidates must be current law students who will have completed at least one year of law school by the start of the internship. Candidates must have excellent writing skills and high academic standing. Candidates must also be U.S. citizens or nationals, must have resided at least three of the past five years in the United States, and must successfully complete a background investigation.</p>
<p><strong>Salary: </strong>Academic or work-study credit possible. Transit subsidies are available.</p>
<p><strong>Travel: </strong>N/A</p>
<p><strong>Application Process: </strong>All applicants must submit a cover letter, resume, writing sample, and law school transcript (unofficial versions accepted). Applicants who are currently 1Ls are also required to submit an undergraduate transcript (unofficial versions accepted). An undergraduate transcript is optional for 2L and 3L applicants. Applications should be sent by email to Sonia Carson, Melissa Patterson, and Ben Shultz at <a href="mailto:civapp.internjobs@usdoj.gov">civapp.internjobs@usdoj.gov</a> (link sends e-mail).</p>
<p><strong>Application Deadline:</strong> Applications for fall- or spring-semester positions are accepted on a rolling basis, and positions are typically filled several months in advance. For the fall semester, applicants are encouraged to apply by April 1; for the spring semester, applicants are encouraged to apply by October 15. Please indicate the semester for which you are applying in the subject line of your email.</p>
<p><strong>Relocation Expenses: </strong>N/A</p>
<p><strong>Number of Positions: </strong>3 to 5 per semester</p>
</blockquote>
</div>
Mon, 13 Aug 2018 12:58:11 -0400Victoria Clark, William Ford15679Document: Court Upholds Constitutionality of Mueller Appointment in Russian Troll Farm Case
https://www.lawfareblog.com/document-court-upholds-constitutionality-mueller-appointment-russian-troll-farm-case
<p>On Monday, Judge Dabney Friedrich of the the U.S. District Court for the District of Columbia ruled against a motion challenging the constitutionality of Special Counsel Robert Mueller’s appointment. The <a href="https://assets.documentcloud.org/documents/4754551/81318-Opinion-Concord-Motion-to-Dismiss.pdf">full order</a> is below:</p>
<div class="DC-embed DC-embed-document DV-container" id="DV-viewer-4754551-81318-Opinion-Concord-Motion-to-Dismiss"> </div>
<script src="//assets.documentcloud.org/viewer/loader.js"></script><script>
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4754551-81318-Opinion-Concord-Motion-to-Dismiss.js", { responsive: true, container: "#DV-viewer-4754551-81318-Opinion-Concord-Motion-to-Dismiss" });
//--><!]]>
</script><p></p><noscript> <a href="https://assets.documentcloud.org/documents/4754551/81318-Opinion-Concord-Motion-to-Dismiss.pdf">81318 Opinion Concord Motion to Dismiss (PDF)</a> <br /><a href="https://assets.documentcloud.org/documents/4754551/81318-Opinion-Concord-Motion-to-Dismiss.txt">81318 Opinion Concord Motion to Dismiss (Text)</a></noscript>
Mon, 13 Aug 2018 10:20:10 -0400Matthew Kahn15678Federalism in the Middle East: A Collection of Essays
https://www.lawfareblog.com/federalism-middle-east-collection-essays
<p><em>Editor’s note: Over the next week, </em>Lawfare <em>will be running a series of essays on federalist governance in the Middle East. This introductory essay is the first in the series. Links to subsequent essays will be added to this post as they are published.</em></p>
<p>Events of the last decade suggest a growing momentum for federalist governance around the world. In multi-ethnic countries like <a href="http://www.tandfonline.com/doi/abs/10.1080/17449050902738846?journalCode=reno20">Nigeria</a> and <a href="https://www.tandfonline.com/doi/abs/10.1080/14736489.2017.1279933">India</a><u>, </u>federalism has arguably helped to hold these nations together. More recently, citizens, NGOs, and policymakers have floated federalism-based restructuring proposals to help mitigate ethnic conflict in <a href="https://www.voanews.com/a/south-sudan-refugees-back-federalist-government/4152445.html">South Sudan</a> and <a href="https://somalianewsroom.com/is-federalism-the-best-path-for-a-state-like-somalia/">Somalia</a>. In Myanmar, consensus is building that federalism might be essential to any lasting <a href="http://www.mizzima.com/news-opinion/secession-federalism-and-decentralization">peace.</a></p>
<p class="rtecenter"><em>Why Federalism?</em></p>
<p>Why might <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1623682">federalism be appealing?</a> Many of its benefits have been documented in the context of large, wealthy countries like the United States, Canada, Australia and Germany. Scholars have pointed to federalism’s benefits: drawing governments closer to their citizens, thereby enabling civic participation; promoting laboratories of democracy, in which subnational units can experiment with policy; permitting citizens to sort themselves by ideological and policy preferences; and, perhaps most importantly, empowering subnational units to resist overreaching central governments.</p>
<p>More recently, federalism has gained ground as a way to mitigate civil conflict based on sectarian divides. That approach differs in origin from U.S. federalism and other traditional federalism models: instead of previously independent political units forming a state (i.e., “coming-together” federalism), a unitary state devolves—and constitutionally protects—a set of powers to its sub-national units. This is instead a “holding-together” federalism, as <a href="https://muse.jhu.edu/article/16996">Alfred Stepan</a> describes it. The core insight here is that by granting some autonomy to regionally concentrated ethnic, political, or religious groups, federalism empowers these groups to govern themselves in ways that more closely track their preferences. The groups receive significant autonomy over key issues: schooling, official languages, and religious regulations. This power devolution decreases the stakes over control of the national government and reduces regional groups’ incentives for violence or secession. In other words, the idea is that, in a <u>divided societ</u>y, turning a perennial national political minority into an empowered regional majority can reduce conflict.</p>
<p class="rtecenter"><em>Federalism in the Middle East?</em></p>
<p>These ideas could resonate in the Middle East as well. Many countries in the region—Iraq, Syria, Lebanon, and Israel, for instance—have deep sectarian divides. Some territories in the region have demanded self-government in the past, such as Hijaz in Saudi Arabia, Cyrenaica in Libya, Kabylie in Algeria, and the Palestinian territories now occupied by Israel. What is more, Middle Eastern governments have historically featured unusually powerful unitary governments with few constraints on their authority. Federalism’s potential to reduce conflict by decentralizing power can therefore make it an attractive governance model for the region.</p>
<p>In the wake of the Arab Spring, federalism seemed more politically feasible than it was before. Since 2010, federalism has been proposed in one way or another in, for example, <a href="https://now.mmedia.me/lb/en/10questions/564170-a-federalism-initiative-in-lebanon">Lebanon,</a> <a href="http://www.nytimes.com/2013/12/25/world/middleeast/yemen-parties-agree-to-federalism.html">Yemen</a> and <a href="http://www.aljazeera.com/news/middleeast/2014/04/federalism-east-libya-debate-201442493215796441.html">Libya</a>. Even before the Arab Spring, Iraq was among the first governments in the region to move to a federal system by devolving powers to its provinces. (Previously, the only federal state in the region was the <a href="http://www.jepeterson.net/sitebuildercontent/sitebuilderfiles/Future_of_Federalism_in_UAE.pdf">United Arab Emirates</a><u>.</u>) Federalism could even be useful for Israel, both to accommodate religious divides within the country and as a partial solution to the Israeli-Palestinian conflict. </p>
<p>Of course, federalism carries potential downsides—chief among them the risk that granting regional autonomy can strengthen a minority group’s sense of identity, thereby <a href="http://dawnbrancati.com/Brancati_IO_Decentralization.pdf">bolstering demands for secession</a>. In this sense, it runs counter to one core function of nation-building: the creation of a shared national identity that transcends tribalism. Critics argue that the so-called “keeping together federalism” actually splinters a country; it nudges political groups away from a shared national identity. This theory may explain what happened in Iraq: observers note that the adoption of a federal form increased existing sectarian divides. The recent events in Catalonia also show how <a href="https://www.cfr.org/interview/can-catalonia-split-spain">strong regional autonomy</a> can morph into demands for secession. And Yugoslavia, Czechoslovakia, and the Soviet Union were each federal states that ultimately crumbled.</p>
<p>The goal of this series of Essays is to explore the potential for federalism in the Middle East—including Israel. The authors here are hardly the first to entertain the idea of federalism for the Middle East. Yet, we believe that the topic continues to merit debate. What is more, our approach differs from prior efforts in that our analysis examines Israel alongside other Middle Eastern nations. We believe this is natural; like other countries in the region, Israel is characterized by deep sectarian divides and could benefit from federalism in numerous ways.</p>
<p class="rtecenter"><em>Introducing A Collection of Essays on Federalism in the Middle East</em></p>
<p>The first essay in this collection is Benjamin Wittes’s <a href="https://www.lawfareblog.com/imagining-federalist-israel-notes-toward-disruptive-fantasy">proposal</a> for a federal Israel. Wittes’s proposal is not the first of its kind; yet, existing discussions on Israeli federalism have mainly focused on some sort of confederation between Israel and Palestine, in the vein of Bosnia and Herzegovina. Wittes takes these ideas one step further and proposes federalism not only as a potential mode of thinking about the Israeli-Palestinian conflict, but also as a potential solution to the growing religious divides within Israel proper.</p>
<p>Wittes’s essay is followed by a critique from Nathan Brown, an expert on constitutionalism in the Arab world. Brown welcomes Wittes’s proposal for pushing the debate in a “fresher and more realistic direction,” but believes it is ultimately unrealistic and insufficiently attuned to the views of Palestinians. Wittes’s and Brown’s essays on federalism in Israel are followed by a more normative piece by Chibli Mallat, which focuses on the Middle East as a whole. A scholar and politician in Lebanon, Mallat has long been a proponent of federalism in the region, including Israel and Palestine. In his essay, he describes how the “F-word” is loaded and often misunderstood in the Middle East, and—after addressing these sources of confusion—makes the case for a federal Middle East.</p>
<p>Zaid Al-Ali’s Essay also focuses on the region as a whole. A lawyer and constitutional law expert based in Tunisia, Al-Ali provides an important descriptive account of federalism’s trajectory in the wake of the Arab Spring. He observes that the momentum for federalism in the region appears to have passed. In Libya, the initial resolve to move to a federal system did not survive the 2017 constitutional drafting. In Yemen, the constitution-making process that had initially envisioned a federal state descended into conflict. In Iraq, which did adopt a federal system, federalism’s track record is dubious at best. Morocco, Tunisia, Egypt and Jordan opted for decentralization instead of federalism, but never fully fleshed out the details. Al-Ali’s message, then, is one of caution.</p>
<p>Lisa Blaydes, a comparativist who studies political institutions and state-building in the Middle East, also urges caution. Drawing on Iraq’s experience with federalism, Blaydes argues that the political arrangements adopted by Iraq after the 2003 American-led invasion increased the salience of sectarian and ethnic divides. She further urges that, if federalism were to be adopted in the region, it should not be imposed by international actors, but adopted through a community-driven process.</p>
<p class="rtecenter"><em>Some Conceptual Clarifications: Decentralization, Confederations, and Secession</em></p>
<p>Some core conceptual clarifications may be useful in reviewing these essays. While there are many competing definitions of federalism— and some scholars eschew the term federalism entirely—all agree that it entails some sharing power between the central government and subnational units, all of which are <a href="https://academic.oup.com/pa/article-abstract/IV/4/496/1482664?redirectedFrom=PDF">“coordinate and independent in their respective spheres.”</a> More useful than settling on an exact definition or an exact label, however, is distinguishing federalism from related, non-federal forms of government.</p>
<p>First, federalism is different from <em>decentralization</em>. Both imply the delegation of powers to subnational units, but federalism involves constitutionally protecting these powers. That is, a constitution in a federal system delineates clearly between powers of subnational units and those of the center; any attempt to breach that barrier (from either side) is unconstitutional. By contrast, with decentralization, powers are delegated to subnational units at the central government’s discretion. Most crucially, this means that powers that have been delegated to subnational units can rolled back if the central government chooses. The distinction between federalism and decentralization is important for the Middle East. After the Arab Spring, Morocco, Tunisia, and Egypt each took steps towards decentralization without constitutionalizing regional powers. To appreciate the importance of this choice, consider a recent example from Israel. In Israel, some powers are decentralized de facto and municipalities have substantial powers in the area of religion, but the Knesset can reclaim these powers if it wishes. When the city of Tel Aviv recently decided to allow shops to open on the Sabbath, for example, the Knesset passed legislation <a href="http://www.jpost.com/Israel-News/Cities-hurry-to-approve-shops-opening-on-Shabbat-before-govt-bans-them-520084">forbidding it</a>. Had Israel been a federal system, Tel Aviv’s actions might have been constitutionally protected.</p>
<p>Second, a federal state is different from a <em>confederation</em>. Federal representatives are directly elected; in a confederation, however, national representatives are chosen by subnational legislatures, not by direct election. Some of the existing proposals for a federal Israel-Palestine have focused on a confederation rather than a federation; by contrast, Benjamin Wittes’s proposal envisions a truly federal Israel.</p>
<p>Third, federalism is distinct from, and does not imply, <em>secession</em>. Chibli Mallat notes that federalism is often conflated with secession in the Middle East. But secession and federalism are conceptually distinct. Constitutions of federal systems <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3062925.">often explicitly prohibit secession.</a> (Ethiopia is a notable exception; its constitution includes a <em>right</em> to secession.) International law recognizes a right to regional autonomy (i.e., “internal” self-determination), but not to secession (i.e., “external” self-determination). If such an international right does exist, it is reserved for the small set of cases where regional groups are systematically repressed and denied representation entirely (e.g., Kosovo). If anything, then, the existence of a federal system with genuine regional autonomy for ethnic and religious groups <em>weakens</em> international legal claims for self-determination. At the same time, while federalism and secession are distinct as a legal matter, some worry that—as noted above—the adopting a federal system strengthens regional identities and increases secessionist claims. Recent events in Catalonia, South Sudan, and others suggest this worry is well-founded, although the empirical evidence is both mixed and scarce.</p>
<p class="rtecenter"><em>Further Design Choices Involved in Creating a Federal System</em></p>
<p>These distinctions merely hint at the range of constitutional design choices involved in creating a federal state. One important design question concerns how to best draw boundaries between subnational units. If the core point of federalism is to accommodate religious or ethnic identities, for example, then maybe boundaries should track these groups; <a href="https://www.tandfonline.com/doi/abs/10.1080/14736489.2017.1279933">India</a> is a prime example of this approach. We can also imagine the opposite approach, whereby sub-national boundaries pack diverse groups <a href="https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2503&amp;context=faculty_scholarship">together in the same region</a>; this approach mitigates concerns that federalism could exacerbate sectarian conflict. Alternatively, it could also be possible to break up one dominant group but not others. </p>
<p>Another key question addresses what powers should be granted to the sub-national units. In countries in which religious divides motivate federalism, sub-national units should probably be given autonomy over religious matters. But do they get to raise their own taxes? Establish their own schools? If the regions are resource-rich, do they gain control over their own natural resources? Relatedly, federal systems must determine which level of government is granted enumerated powers and which level is granted plenary powers. In the United States, all powers not explicitly granted to the federal government belong to the states; yet many federal systems reverse this setup. In some cases, the constitutions enumerate the exact powers of both the central government and the subnational units. In these countries constitution-makers will have to address where the residual powers should lie for issues that arise after the federal constitution’s adoption and which the framers did not envision.</p>
<p>Finally, there is the question of who arbitrates conflicts between the central government and sub-national units. It is hard to imagine how a federation can function without an arbiter with jurisdiction over intra-state conflicts. This is less of a challenge for Israel, which has a strong and independent Supreme Court, than it is for countries that might establish a federal system without a tradition of judicial independence, like Myanmar.</p>
<p>Thus, creating a well-functioning federal system involves much more than a decision on whether to be federal or not. The devil is in the details: seemingly technical design choices can have profound consequences for how a federalist government operates. The Essays in this series certainly do not claim to be complete governance proposals. Instead, they present some initial thoughts and analysis by writers who have watched how federalism’s prospects have fared recently in the Middle East. Our goal is to take stock of federalism’s track record so far, with the hope of figuring out whether proposals for federalism should move forward—and if so, how to best facilitate them.</p>
Mon, 13 Aug 2018 09:13:56 -0400Mila Versteeg15677An Old OLC Opinion on Whether the President Can Be Subpoenaed
https://www.lawfareblog.com/old-olc-opinion-whether-president-can-be-subpoenaed
<p>Over the weekend, I received a surprising email from my friend <a href="https://www.lawfareblog.com/contributors/sbates">Stephen Bates</a>, a professor of journalism and media studies at the University of Nevada Las Vegas who occasionally writes for <em>Lawfare</em>. Partly because of Bates’s work for Ken Starr, for whom he helped write the Starr Report, Bates has a long-running interest in matters pertaining to investigations of presidents. So back in June, he sought under the Freedom of Information Act <a href="https://www.documentcloud.org/documents/4753843-Dixon-Memo-on-Presidential-Subpoena.html">a Watergate-era Office of Legal Counsel opinion</a> on what has once again become a timely subject: “Presidential Amenability to Judicial Subpoenas.”</p>
<p>Remarkably, this document appears not previously to have become public. According to the correspondence between Bates and OLC, Bates became aware of it because it is cited in a different, more famous OLC memo from 2000, entitled "<a href="https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf">A Sitting President's Amenability to Indictment and Criminal Prosecution</a>." That memo reinforced an earlier Watergate-era memo by Robert G. Dixon Jr. entitled, “<a href="https://archive.org/details/1973OLCAmenabilityofthePresidenttoFederalCriminalProsecution">Amenability Of The President, Vice President And Other Civil Officers To Federal Criminal Prosecution While In Office</a>.” After receiving the subpoena memo, also written by Dixon, Bates sent it my way.</p>
<script src="https://donorbox.org/install-popup-button.js" type="text/javascript" defer="defer"></script><script>
<!--//--><![CDATA[// ><!--
window.DonorBox = { widgetLinkClassName: 'custom-dbox-popup' }
//--><!]]>
</script><p class="rtecenter"><a br="" class="twitter-timeline-link custom-dbox-popup" href="https://donorbox.org/support-lawfare" rel="nofollow" style="background:#006a71 no-repeat 37px center; color: #fff;text-decoration: none;font-family: Georgia;display: inline-block;font-size: 16px;padding: 15px 38px 15px 38px; -webkit-border-radius: 2px; -moz-border-radius: 2px; border-radius: 2px; box-shadow: 0 1px 0 0 #004a4f; text-shadow: 0 1px rgba(0, 0, 0, 0.3);" target="_blank"><strong><big>Support <i>Lawfare</i></big></strong></a></p>
<p>I cannot promise that this memo has never become public before. Bates believes it is new, and I cannot find it on <a href="https://www.justice.gov/olc/opinions-main">OLC’s website</a>. Nor does it readily show up in an internet search, though I haven’t dug hard for it. Suffice it to say it has been, at a minimum, little noticed even at a time when we are actively debating, well, the amenability of the president to judicial subpoena.</p>
<p>Here is the memo, along with a few observations about it: </p>
<div class="DC-embed DC-embed-document DV-container" id="DV-viewer-4753843-Dixon-Memo-on-Presidential-Subpoena">First, the document antedates the Supreme Court’s landmark holding in <a href="https://www.law.cornell.edu/supremecourt/text/418/683"><em>U.S. v. Nixon</em></a>, so a fair bit of its analysis is out of date and interesting mostly for historical reasons. Specifically, to the extent that it discusses both executive privilege and the amenability of the president to a <em>subpoena duces tecum</em>, particularly a trial subpoena, <em>Nixon </em>addresses and answers both of these questions directly.</div>
<script src="//assets.documentcloud.org/viewer/loader.js"></script><script>
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4753843-Dixon-Memo-on-Presidential-Subpoena.js", {
responsive: true,
container: "#DV-viewer-4753843-Dixon-Memo-on-Presidential-Subpoena"
});
//--><!]]>
</script><p></p><noscript><br /><a href="https://assets.documentcloud.org/documents/4753843/Dixon-Memo-on-Presidential-Subpoena.pdf">Dixon Memo on Presidential Subpoena (PDF)</a><br /><br /><a href="https://assets.documentcloud.org/documents/4753843/Dixon-Memo-on-Presidential-Subpoena.txt">Dixon Memo on Presidential Subpoena (Text)</a><br /></noscript>
<p>Second, the memo does not focus, for obvious reasons, on what would be the critical question if Special Counsel Robert Mueller were to issue a grand jury subpoena to President Trump for his testimony, having failed to garner a voluntary interview from him: Whether a grand jury <em>subpoena</em> <em>ad testificandum </em>is sufficiently different from a subpoena at trial for tangible evidence (tapes) so as to be meaningfully distinguishable from the case in <em>Nixon</em>. Steve Vladeck and I <a href="https://www.lawfareblog.com/can-presidency-trump-special-counsel-subpoena">studied this question</a> in May and concluded that “Mueller would probably prevail if and when a battle over a grand-jury subpoena makes its way into court. But it is not a sure thing, and the president has plausible arguments available to him that a court would have to work through before enforcing a subpoena for his testimony.” Bates, <a href="https://www.washingtonpost.com/outlook/mueller-could-subpoena-trump-but-its-not-worth-the-chaos-that-would-follow/2018/07/12/04df0804-8550-11e8-9e80-403a221946a7_story.html?utm_term=.04203b562dc0">writing in the Washington Post</a>, agreed, though he argued prudentially against Mueller’s pushing the matter:</p>
<blockquote><p>In the Starr investigation in 1998, President Bill Clinton declined six invitations to testify before the grand jury. When the grand jury voted to subpoena him, the president’s lawyers said he would testify voluntarily, but the subpoena had to be withdrawn. To avoid a drawn-out court fight, Starr agreed. As a result, the courts have never evaluated the constitutionality of a subpoena seeking a president’s testimony before a grand jury. When Clinton claimed immunity in another judicial proceeding, he lost in the Supreme Court — unanimously. The same thing happened to the only other president to make such an argument, Richard Nixon.</p>
<p>So Mueller probably has the legal and constitutional authority, but he shouldn’t exercise it against this norm-busting president.</p>
</blockquote>
<p>Third, all that said, the memo does contain some interesting analysis and conclusions. It lays out the history of Chief Justice John Marshall’s subpoena of President Thomas Jefferson to testify in the Aaron Burr treason trial and Jefferson’s response to it—which amounted to an agreement to testify but a refusal to travel to do it and consequent insistence on testifying by deposition. Subsequent presidents, the memo recounts, have followed this pattern. Dixon concludes:</p>
<blockquote><p>The subpoenaing of a president involves a number of complex issues depending on the circumstances in which and the purposes for which the subpoena is issued. It is no answer to say with Chief Justice Marshall that the court’s power to subpoena the President is not disputed. As the Chief Justice himself pointed out, even assuming the existence of that power, the courts still would not proceed against the President in the same manner “as against an ordinary individual.” The real problem therefore lies not in the existence <em>vel non</em> of the basic subpoena power, as in fashioning rules which properly take into consideration the President’s special status and the particular circumstances of the case.</p>
</blockquote>
<p>This analysis has proven prescient in the post-Watergate era. During Watergate itself, the matter was tested not with respect to grand jury subpoenas for testimony. As Bates notes in the Post, “Jaworski, in fact, asked Nixon to testify before the grand jury. Nixon declined, and Jaworski decided not to issue a subpoena. He thought the president would refuse to comply. Some fights were worth fighting. This wasn’t one of them.”</p>
<p>By contrast, when Starr sought to compel Bill Clinton’s grand jury testimony, the question did not turn out to be a binary one of whether Clinton would testify at all, because Starr withdrew the subpoena when the two sides negotiated a set of terms under which Clinton—like Jefferson—testified from the White House. And Clinton did so with a number of accomodations that prosecutors would never make for an ordinary subject. If Mueller decides to pursue Trump’s testimony, it is reasonable to expect once again the crux of the issue to be less whether a subpoena is valid per se than the specific circumstances under which testimony will take place. </p>
Mon, 13 Aug 2018 07:56:50 -0400Benjamin Wittes15676Is It Time for a Space Force?
https://www.lawfareblog.com/it-time-space-force
<p><em>Editor’s Note: One of President Trump's more surprising, and more ambitious, decisions is to create a sixth branch of the military dedicated to space. Such a move would be historic, but would it be a good idea? Robert Farley of the University of Kentucky weighs the pros and cons and ends up on the skeptical side, arguing that there are better approaches to securing the U.S. ability to operate and dominate in space.</em></p>
<p align="right"><em>Daniel Byman</em></p>
<p align="center">***</p>
<p>Are we on our way to a United States Space Force? On June 19, <a href="https://www.nytimes.com/2018/06/18/us/politics/trump-space-force-sixth-military-branch.html">President Trump announced</a> that he would direct the Department of Defense to establish a dedicated Space Force, “separate but equal” from the Air Force and presumably the other existing services. On August 9, Vice President Pence reaffirmed the administration’s commitment, and <a href="https://www.washingtonpost.com/business/economy/pence-details-plan-for-creation-of-space-force-in-what-would-be-the-sixth-branch-of-the-military/2018/08/09/0b40b8d0-9bdc-11e8-8d5e-c6c594024954_story.html?utm_term=.bd80a653d854">laid out some details</a> on the development of the new service. Of course, the president cannot merely create a Space Force. Reorganizing the Department of Defense would require an act of Congress on par with the National Security Act of 1947 (which created DoD and the USAF), or of the Goldwater-Nichols Act of 1986. However, the presidential directive does make it more difficult for the Pentagon and the existing services to publicly oppose the creation of a Space Force. In 2017, the <a href="https://www.vice.com/en_us/article/gybvv4/the-us-space-corps-could-soon-protect-us-from-planetary-conflict-vgtrn?utm_source=vicetwitterus">House Armed Services Committee considered a bill</a> that would <a href="https://www.csis.org/analysis/congress-creating-military-space-corps">create a Space Corps</a>, a level of independence somewhat below that of an independent service. The proposal went nowhere beyond demonstrating congressional interest in the military aspects of space, as it inspired resistance from <a href="https://www.cnn.com/2017/11/08/politics/congress-space-corps-ndaa/index.html">the Air Force and from the Pentagon.</a> The combination of presidential and congressional interest in creating a new military organization for space does suggest that the idea has some legs, even if the bureaucracy attempts to impose significant roadblocks.</p>
<p> </p>
<p><strong>The Reasons Why</strong></p>
<p>The idea of a Space Force <a href="http://www.dtic.mil/get-tr-doc/pdf?AD=AD1030447">has bounced around the</a> bureaucracy and the think tank archipelago for some time, but had not gained serious currency until President Trump began exploring the idea rhetorically. The United States has not created a new service since the 1940s, when the birth of the U.S. Air Force shook the entire defense establishment. Yet this is not the first proposal to redesign the service architecture; previous proposals (made more and less seriously) have involved independent services for submarines, Special Operations Forces, cyber forces, and counter-insurgency-specialized ground forces. In many cases, these proposals resulted in levels of autonomy below an independent, co-equal service.</p>
<p>So why one and not the other? Why should some military capabilities belong within established services, and others require a new organization? The creation of a new service is essentially a political act, intended to <a href="https://defenceindepth.co/2017/06/24/space-warfare-in-the-pentagon-in-support-of-an-independent-space-corps/">force the uniformed military</a> to adopt a preferred structure. It has little to do with a specific geographic domain; every U.S. service operates in space, just as all have continued to operate in the air despite the creation of the USAF. Political interest in the preferred structure may come from a desire to protect particular capabilities from <a href="http://nationalinterest.org/blog/the-buzz/against-air-force-space-corps-space-belongs-the-navy-21350">broader organizational processes. </a>For example, early aviators called for an independent air force in order to enable the creation of modern air doctrine and modern aircraft free of the demands of “ground pounders” in the Army. A similar call emerged in the 1980s, as the Special Operations Forces community, frustrated with a lack of support from the existing services, called for the creation of an independent service. Proponents of the Space Force argue that space assets currently compete for priority within the Air Force, and that the Air Force devotes insufficient resources and attention to the space warfare.</p>
<p>Another reason is to achieve gains from specialization through the commitment of resources and personnel to a <a href="https://blog.usni.org/posts/2017/07/10/who-needs-a-space-corps">specific domain</a> or weapon system. Big organizations can lose cultural cohesion, and consequently focus on a particular kind of warfighting. By creating a new service, civilian leaders can <a href="http://www.au.af.mil/au/awc/awcgate/usafa/ocp19.pdf">reintroduce cultural and bureaucratic logics</a> that reinforce the pursuit of excellence in a <a href="https://www.thenewatlantis.com/publications/proposing-a-coast-guard-for-space">domain of family of systems</a>. This logic is often related to the idea of mission coherence, which suggests that service boundaries should be formed around discrete, coherent mission planning-can this organization plan and achieve victory better when it is independent of other organizations, or at least in arms-length relation to other organizations? This is the logic that undergirded USAF independence in 1947, creating an unfettered organization to plan for and win wars with strategic bombing campaigns. Freed from the burden of facilitating air, naval, and army operations, Space Force would focus its attention on offensive and defensive satellite warfare, independently developing doctrine to provide for the dominance of space, protecting the satellites that form the backbone of U.S. communications and intelligence networks, and threatening those of Russia and China.</p>
<p>More generally, <a href="https://object.cato.org/sites/cato.org/files/serials/files/regulation/1999/10/defensemonopoly.pdf">some scholars</a> have argued that more services means more competition, which pays dividends in both effectiveness and procurement. The Air Force, for example, learned much from the outstanding performance of Navy pilots during the Vietnam War. Competition over ballistic missiles between the three services in the 1950s probably propelled <a href="https://dspace.mit.edu/handle/1721.1/11217">those systems into rapid development</a>.</p>
<p> </p>
<p><strong>Better Together?</strong></p>
<p>But there are downsides to an independent service. The development of an independent service (separate but equal) creates a bureaucratic wall that runs through mission planning and execution, and can distort procurement. The 1947 reorganization yielded the USAF, which then led to bitter inter-service conflict that affected operations in Korea, Vietnam, Grenada, and perhaps most disastrously in Operation Eagle Claw, the failed effort to rescue hostages from the U.S. Embassy in Tehran. Goldwater-Nichols smoothed those edges somewhat, as has the experience of continuous war over the past seventeen years.</p>
<p>Conflicts are likely to become particularly acute for a service whose responsibilities cut across so many different missions. Inter-service conflict can be manageable at a mission level when the responsibilities of each service are internally coherent, and collaboration amounts to an arm’s-length transaction. While the Army and the Navy had conflicts prior to World War II, for example, these conflicts rarely involved disruption to core missions because the missions of each service were largely distinct from one another, except in unusual and manageable cases.</p>
<p>The development of manned flight, on the other hand, meant that every service required management of the air domain at all times; creating an independent service to manage air made conflict inevitable. It is no accident that many of the worst inter-service conflicts in the United States have revolved around the <a href="https://www.amazon.com/Warthog-Close-Air-Support-Debate/dp/1557502323">provision of close air support</a>. Close air support (the use of airpower to attack ground forces in close proximity to friendly units) necessarily requires collaboration between ground and air units, but is valued differently by the Army and the Air Force. This conflict has played out in the real-time provision of combat capability, but also in procurement, as we enter the fifth decade of the saga of the Air Force’s effort to kill off the A-10 Warthog.</p>
<p>This makes the idea of a Space Force look particularly troubling. Every mission that the U.S. military conducts involves space in some fashion. Every service depends on connectivity provided by communications satellites and reconnaissance data provided by surveillance satellites. Other manifestations of space-related military power, such as ballistic missile defense, also cross existing service lines. The potential for competition is ripe, with the lines of conflict glaring and obvious; the priorities of the other services in space will necessarily conflict with the priorities of the Space Force itself. Bureaucratic walls can create unexpected problems as means of communications, jargon, and professional expectations differ across organizations; in the past, simple definitional misunderstandings between services have produced serious problems. As it develops its own identity and organizational culture, a Space Force may struggle to provide the level of service that the other organizations have grown to rely on.</p>
<p> </p>
<p><strong>Conclusion</strong></p>
<p>There are substantial downsides and few clear upsides to the creation of an independent space force. A Space Force could capture some gains to specialization reflected in the development of offensive and defensive weapons designed to protect U.S. space-based assets, or threaten the space-based assets of potential foes. The creation of a Space Force could also ensure that space receives sufficient bureaucratic attention, and that it does not need to compete within an organization against other priorities.</p>
<p>But it is not obvious that the existing services have allowed space to lay fallow, or that there are substantial unexplored gains in the area of offensive or defensive space weaponry. Other solutions, including the creation of a combatant command dedicated to space (which would include personnel and priorities from the existing services, rather than residing in the Air Force), or the creation of a Space Corps within the Air Force (similar organizationally to the U.S. Marine Corps) could potentially resolve the problems that a Space Force is supposed to solve, without creating a complex new bureaucratic hierarchy. To this point, the Trump administration has not offered a compelling logic for why the problem of fighting in space requires such a drastic organizational solution.</p>
Sun, 12 Aug 2018 10:00:01 -0400Robert Farley15674The Week That Was: All of Lawfare in One Post
https://www.lawfareblog.com/week-was-all-lawfare-one-post-261
<p>President Trump surprised many legal experts on Sunday when he <a href="https://twitter.com/realDonaldTrump/status/1026084333315153924">tweeted</a> that the purpose of the June 2016 Trump Tower meeting was “to get information on an opponent.” Bob Bauer <a href="https://www.lawfareblog.com/how-latest-trump-tower-tweet-damages-presidents-legal-defense">outlined</a> the many ways that the president’s tweet could hurt his legal defense.</p>
<p>Bauer and Jack Goldsmith also <a href="https://www.lawfareblog.com/executive-branch-lawyering-time-crisis">shared</a> their complementary articles on the experience of being the president’s lawyer during a time of crisis. </p>
<p>Victoria Clark, Matthew Kahn, Mikhaila Fogel, Quinta Jurecic, and Benjamin Wittes <a href="https://www.lawfareblog.com/peter-smiths-search-hillary-clintons-emails-subplot-thickens">offered</a> their analysis of the latest twist in a <em>L'Affaire Russe </em>subplot: Peter Smith and the case of the 33,000 missing emails. Wittes also <a href="https://www.lawfareblog.com/lawfare-podcast-special-edition-buzzfeed-follows-peter-smiths-money">sat down</a> with Anthony Cormier, one of the Buzzfeed reporters who broke the story, and David Kris for a special edition of the <em>Lawfare Podcast </em>to unpack it all:</p>
<p></p><center>
<iframe allowfullscreen="" height="90" mozallowfullscreen="" msallowfullscreen="" oallowfullscreen="" scrolling="no" src="//html5-player.libsyn.com/embed/episode/id/6912918/height/90/theme/custom/autoplay/no/autonext/no/thumbnail/yes/preload/no/no_addthis/no/direction/backward/render-playlist/no/custom-color/87A93A/" style="border: none" webkitallowfullscreen="" width="100%"></iframe><p></p></center>
<p>On the "Ask Us Anything" edition of <em>Rational Security, </em>Jurecic, Shannon Togawa Mercer, Tamara Cofman Wittes and Benjamin Wittes <a href="https://www.lawfareblog.com/rational-security-ask-us-anything-edition">answered</a> all of the questions you’ve ever wanted to ask about national security, Shannon’s cat, and a coat made of live puffins:</p>
<p></p><center>
<iframe allowfullscreen="" height="90" mozallowfullscreen="" msallowfullscreen="" oallowfullscreen="" scrolling="no" src="//html5-player.libsyn.com/embed/episode/id/6905249/height/90/theme/custom/autoplay/no/autonext/no/thumbnail/yes/preload/no/no_addthis/no/direction/backward/render-playlist/no/custom-color/87A93A/" style="border: none" webkitallowfullscreen="" width="100%"></iframe><p></p></center>
<p>A federal judge <a href="https://www.lawfareblog.com/document-court-dismisses-president-trump-party-transgender-service-member-ban-case">issued</a> two opinions on Monday in the transgender service member ban case, removing President Trump as a party and denying the defendants’ motion to dismiss.</p>
<p>On Tuesday, the U.S. Appeals Court for the D.C. Circuit <a href="https://www.lawfareblog.com/document-dc-circuit-denies-habeas-petition-guantanamo-detainee">denied</a> the habeas petition of Guantanamo detainee Moath Hamza Ahmed al-Alawi. On the <em>National Security Law Podcast, </em>Robert Chesney and Steve Vladeck <a href="https://www.lawfareblog.com/national-security-law-podcast-party-its-june-28-2004">dove deep</a> on a different Guantanamo detention case: <em>Hamdi v. Rumsfeld. </em></p>
<p class="rtecenter"> </p>
<p class="rtecenter">
</p><div class="media_embed" height="30px" width="320px">
<iframe frameborder="0" height="30px" scrolling="no" src="https://www.nationalsecuritylawpodcast.com/?powerpress_embed=2181-podcast&amp;powerpress_player=mediaelement-audio" width="320px"></iframe></div>
<p>J. Dana Stuster <a href="https://www.lawfareblog.com/saudi-arabia-responds-human-rights-criticism-expelling-canadian-ambassador">examined</a> how a single tweet led Saudi Arabia to expel the Canadian ambassador on this week’s Middle East Ticker.</p>
<p>Tehilla Shwartz Altshuler and Rachel Aridor-Hershkovitz <a href="https://www.lawfareblog.com/israels-proposed-facebook-bill">predicted</a> the implications if the Knesset passes a proposed social-media censorship bill.</p>
<p>Suzanne Maloney <a href="https://www.lawfareblog.com/trump-wants-bigger-better-deal-iran-what-does-tehran-want">analyzed</a> Tehran’s possible motivations for sitting down to talk with Donald Trump.</p>
<p>And Elena Chachko and Amichai Cohen <a href="https://www.lawfareblog.com/fact-and-fiction-about-amendment-israeli-supreme-courts-jurisdiction-over-west-bank-cases">explained</a> the Knesset's latest amendment to the Israeli Supreme Court’s jurisdiction over West Bank cases.</p>
<p>The <em>Lawfare Podcast </em><a href="https://www.lawfareblog.com/lawfare-podcast-challenges-digital-evidence">featured</a> a discussion on a new Center for Strategic and International Studies report that details the myriad challenges of digital evidence:</p>
<p></p><center>
<iframe allowfullscreen="" height="90" mozallowfullscreen="" msallowfullscreen="" oallowfullscreen="" scrolling="no" src="//html5-player.libsyn.com/embed/episode/id/6901114/height/90/theme/custom/autoplay/no/autonext/no/thumbnail/yes/preload/no/no_addthis/no/direction/backward/render-playlist/no/custom-color/87A93A/" style="border: none" webkitallowfullscreen="" width="100%"></iframe><p></p></center>
<p>Molly McKrew <a href="https://www.lawfareblog.com/can-senate-constrain-president-nato-and-russia">questioned</a> whether the Senate has the power to constrain the president in matters of foreign policy.</p>
<p>Kathleen Claussen <a href="https://www.lawfareblog.com/trade-war-battles-congress-reconsiders-its-role">predicated</a> that Congress may get involved in trade matters as the trade war escalates.</p>
<p>Stewart Baker <a href="https://www.lawfareblog.com/cyberlaw-podcast-bonus-interview-joseph-nye">interviewed</a> Joseph Nye on this week’s <em>Cyberlaw Podcast</em>:</p>
<p></p><center>
<iframe allowfullscreen="" height="90" mozallowfullscreen="" msallowfullscreen="" oallowfullscreen="" scrolling="no" src="//html5-player.libsyn.com/embed/episode/id/6899452/height/90/theme/custom/autoplay/no/autonext/no/thumbnail/yes/preload/no/no_addthis/no/direction/backward/render-playlist/no/custom-color/87A93A/" style="border: none" webkitallowfullscreen="" width="100%"></iframe><p></p></center>
<p>Wenqing Zhao and David Stanton <a href="https://www.lawfareblog.com/sinotech-google-plans-opening-china-and-ndaa-lets-zte-deal-hook">rounded up</a> recent news in the U.S.-China tech policy world. Evelyn Douek <a href="https://www.lawfareblog.com/transatlantic-techlash-continues-uk-and-us-lawmakers-release-proposals-regulation">took</a> a closer look at two recent proposals to regulate tech companies, one from the U.S. and one from the U.K. And Jon Michels presented his proposal on the proper role of tech giants. </p>
<p>Klon Kitchen <a href="https://www.lawfareblog.com/lawfare-podcast-fighting-deep-fakes">led</a> a discussion on “deep fakes” with Chesney, Danielle Citron, and Chris Bregler on the <em>Lawfare Podcast</em>:</p>
<p></p><center>
<iframe allowfullscreen="" height="90" mozallowfullscreen="" msallowfullscreen="" oallowfullscreen="" scrolling="no" src="//html5-player.libsyn.com/embed/episode/id/6887110/height/90/theme/custom/autoplay/no/autonext/no/thumbnail/yes/preload/no/no_addthis/no/direction/backward/render-playlist/no/custom-color/87A93A/" style="border: none" webkitallowfullscreen="" width="100%"></iframe><p></p></center>
<p>Daniel Byman <a href="https://www.lawfareblog.com/intelligence-reserve-corps-counter-terrorist-use-internet">announced</a> the latest edition of the Aegis Paper Series from the Hoover Institution, which proposes an Intelligence Reserve Corps. </p>
<p>Steve Slick <a href="https://www.lawfareblog.com/quis-custodiet-ipsos-custodes">reviewed</a> Loch Johnson’s book “Spy Watching: Intelligence Accountability in the United States.”</p>
<p>And Amber Herrle <a href="https://www.lawfareblog.com/what-realistically-expect-when-youre-expecting-nazis">predicted</a> that this weekend's Nazi rally in Washington DC will be a bust.</p>
<p>And that was the week that was.</p>
Sat, 11 Aug 2018 08:18:37 -0400Victoria Clark15667What to (Realistically) Expect When You’re Expecting Nazis
https://www.lawfareblog.com/what-realistically-expect-when-youre-expecting-nazis
<p>The Nazis are <a href="https://www.vox.com/policy-and-politics/2018/8/9/17671354/unite-the-right-2-2018-dc-rally-protest">coming to Washington this weekend</a>. Counter-protesters are <a href="https://www.pbs.org/newshour/nation/counterprotesters-mobilize-against-sundays-unite-the-right-rally-in-d-c-a-year-after-charlottesville">organizing</a>. Antifa is <a href="https://www.washingtonpost.com/news/democracy-post/wp/2018/08/06/white-nationalists-are-coming-to-d-c-heres-the-best-way-to-protest/?utm_term=.93196faa0cf5">showing up</a>. Officials are <a href="https://www.washingtonpost.com/local/public-safety/dc-prepares-for-sunday-showdown-between-white-supremacists-and-counterprotesters/2018/08/09/7408df40-9bc9-11e8-b60b-1c897f17e185_story.html">worried</a> about violence. And the press is going wild over it all.</p>
<p>I hate to burst anyone’s balloon here, but I know these Nazis, and I’m not expecting much.</p>
<p>Yes, Jason Kessler, the organizer of the Sunday’s sequel to last August’s Unite the Right rally in Charlottesville, Va., has been getting a lot of airtime in national media. He <a href="https://www.npr.org/2018/08/10/637390626/a-year-after-charlottesville-unite-the-right-rally-will-be-held-in-d-c">spoke</a> Friday morning with NPR’s Noel King, who allowed him to rank the races by intelligence on Morning Edition. One question King didn’t ask him, however, was how many people he’s expecting at the protest. She should have asked.</p>
<p>The truth is that the press attention Kessler is getting is far more substantial than his protest is likely to be. The National Park Service <a href="https://www.nps.gov/aboutus/foia/upload/18-1166-Unite-the-Right-Permit_REDACTED.pdf">permit application</a> that Kessler and co-organizer Samaria Ruiz filed suggested that between 100 and 400 demonstrators will attend their rally. And some presentations of the protest in news outlets seem to be expecting hundreds of Nazis. But public statements by other white supremacist leaders, analysis of internet forums and chats, and my own conversations with Nazi organizers suggest something else: In the wake of <a href="https://www.thedailybeast.com/charlottesville-hate-leader-jason-kessler-doxxes-his-own-followers">doxxings</a>, a <a href="https://www.washingtontimes.com/news/2018/jul/10/charlottesville-court-allows-civil-rights-suit-pro/">civil-rights lawsuit</a>, and <a href="https://www.thedailybeast.com/less-than-a-year-after-charlottesville-the-alt-right-is-self-destructing">significant internal rifts</a>, the white-nationalist movement has lost over the past year all of the momentum it seemed to be gaining at the time of Charlottesville. At this stage, it is actually imploding. So while the showing up of American white supremacists in the nation’s capital should be taken seriously, we should also have a realistic assessment of what the movement, as it stands, can actually pull off.</p>
<p>I’ve researched white nationalists in the rural midwest over the past year. At a Pizza Hut in Paoli, Indiana, organizers and attendees of last year’s violent rally in Charlottesville described to me their visions of a white ethno-state. Since then, I’ve maintained contact with some of them. And in the weeks leading up to this weekend’s event, I spoke with several, and they provided important insight into the rally.</p>
<p>Here's the thing: no one knows anyone who's going besides the rally’s primary organizer, Jason Kessler.</p>
<p>I also spoke with white nationalist researcher, Vegas Tenold, who stated in an interview that he would be “shocked if more than 25 attended.”</p>
<p>Joan Donovan, a researcher who focuses on media manipulation and white supremacy, has mined online forums for indications of travel logistics and funding to estimate attendance at such events. She says <a href="https://www.thecut.com/2018/08/unite-the-right-rally-washington-dc.html">there has not been much</a> of either regarding Sunday’s protest.</p>
<p>Kessler himself has not released travel plans, and leaked Facebook chats reveal that he is leaning on others for such coordination, explaining to his team that he has “too much on his plate already” to make arrangements for others.</p>
<p>It wasn't always this way. Only a year ago, Kessler was the primary organizer of the Charlottesville demonstration and major leaders were willing to work with him to turn out their people for it. This year, however, they are not playing ball. </p>
<p>In fact, there has even been a counter-movement among many of America’s most prominent Nazis, who are warning their adherents <em>not</em> to attend. Richard Spencer <a href="https://www.newsweek.com/white-nationalist-leaders-charlottesville-anniversary-916185">has made</a> statements indicating that neither he nor his followers would be in attendance, including this one:</p>
<p class="rtecenter"><img alt="" src="https://lawfare.s3-us-west-2.amazonaws.com/staging/2018/Screen%20Shot%202018-08-10%20at%208.27.39%20PM.png" style="height: 358px; width: 400px; margin-top: 10px; margin-bottom: 10px;" /></p>
<p>Andrew Anglin, founder of the Daily Stormer, had a similarly pointed statement to his readers:</p>
<p class="rtecenter"><img alt="" src="https://lawfare.s3-us-west-2.amazonaws.com/staging/2018/Screen%20Shot%202018-08-10%20at%208.27.53%20PM.png" style="width: 400px; height: 242px; margin-top: 10px; margin-bottom: 10px;" /></p>
<p>Anglin’s statement spoke directly to the white supremacist movement, advising readers that any involvement in Kessler’s march would put them at risk of violence and doxxing. These are movement leaders whose followers do, in fact, follow their directives—if blindly. Another leader who has dissuaded followers from attending, <a href="https://www.washingtonpost.com/local/public-safety/crying-nazi-barred-from-virginia-after-pleading-guilty-to-assault-during-charlottesville-rally/2018/07/20/164480a4-8c5f-11e8-81bf-28c7cd96bbc2_story.html?utm_term=.ac9ac69ef4bf">Chris Cantwell</a>, explained to me: “They put a great deal of stock in what I say.”</p>
<p>“Nobody knows anyone that is going,” a self-identified Nazi who attended last year’s rally told me. What's more, nobody even knows who is speaking. Leaked Facebook chats reveal Kessler’s desire to court the attendance of KKK leader David Duke and former Republican Senate candidate Patrick Little, but neither have confirmed that they’ll be there.</p>
<p>Why are prominent white nationalist leaders and rank and file supporters boycotting Kessler's event? Kessler actually has few friends, and his volatile personality has led him to be ostracized by other leaders in white-nationalist circles, based on my conversations with members of the movement. While many white supremacists initially felt sympathy for the legal snare he fell into after Charlottesville—he's facing civil rights suits from counter-protesters—their sympathy quickly turned to hostility, as many felt Kessler lacked the leadership skills and bravado to lead a team of white-race defenders. Many describe him as a “loose cannon” and a threat to the wider “movement.”</p>
<p>In white nationalist social networks and in-person circles, one must search long and hard for someone who is actively promoting the rally, and even further to find someone who has described Kessler in favorable terms. Unsurprisingly, with a movement that lacks ideological stability, social capital goes a long way. Unfortunately for Kessler’s purposes, he appears to be flailing in a puddle of his social ineptitude. Chris Cantwell explained, “I used to think he was the bravest guy in the world because he walked into these dangerous situations without a hint of fear, now I believe that he just doesn’t realize how much danger he puts himself in.” Others contend that Kessler's divisive and volatile personality actually pose a danger. </p>
<p>Kessler himself has diminished has expectations for Sunday's rally. In <a href="https://unicornriot.ninja/wp-content/uploads/charlottesville/utr-2018-facebook.html">a chat with 21 prospective attendees</a>, he said: "The Alt Right is poor, disorganized and lacking in conviction.” </p>
<p>So what should we expect on Sunday? A lot of media coverage, a lot of counter-protestors, a lot of anxiety, but not a lot of Nazis. </p>
Sat, 11 Aug 2018 07:49:19 -0400Amber Herrle15672The Lawfare Podcast: Special Edition: Buzzfeed Follows Peter Smith’s Money
https://www.lawfareblog.com/lawfare-podcast-special-edition-buzzfeed-follows-peter-smiths-money
<p>There’s a new twist in one of the stranger subplots of <em>L’Affaire Russe: </em><a href="https://www.buzzfeednews.com/article/jasonleopold/peter-w-smith-hillary-clinton-emails-trump-flynn-money">Buzzfeed News reports</a> that Peter Smith, a Republican operative who reportedly sought to obtain missing Hillary Clinton emails during the 2016 presidential campaign, made several suspicious withdrawals from bank accounts during the timeframe of his quest for Clinton’s emails—suggesting that he may have paid people he believed were Russian hackers.</p>
<p>Benjamin Wittes is joined by Buzzfeed reporter Anthony Cormier and former assistant attorney general for national security David Kris to make sense of it all.</p>
<p class="rtecenter">
<iframe allowfullscreen="" height="90" mozallowfullscreen="" msallowfullscreen="" oallowfullscreen="" scrolling="no" src="//html5-player.libsyn.com/embed/episode/id/6912918/height/90/theme/custom/autoplay/no/autonext/no/thumbnail/yes/preload/no/no_addthis/no/direction/backward/render-playlist/no/custom-color/87A93A/" style="border: none" webkitallowfullscreen="" width="100%"></iframe></p>
Fri, 10 Aug 2018 22:45:11 -0400Mikhaila R. Fogel15673Peter Smith’s Search for Hillary Clinton’s Emails: The Subplot Thickens
https://www.lawfareblog.com/peter-smiths-search-hillary-clintons-emails-subplot-thickens
<p>There’s a new twist in one of the stranger subplots of <em>L’Affaire Russe. </em><a href="https://www.buzzfeednews.com/article/jasonleopold/peter-w-smith-hillary-clinton-emails-trump-flynn-money">Buzzfeed News reports</a> that Peter Smith, a Republican operative who reportedly sought to obtain missing Hillary Clinton emails during the 2016 presidential campaign, made several suspicious withdrawals from bank accounts during the timeframe of his quest for Clinton’s emails—suggesting that he may have paid people he believed were Russian hackers.</p>
<p>What’s more, the article, by reporters Anthony Cormier and Jason Leopold, suggests that the transactions are of active interest to the Mueller investigation. The special counsel indicted 12 Russian intelligence officers for hacking Democratic emails less than a month ago—and that <a href="https://www.lawfareblog.com/russia-indictment-20-what-make-muellers-hacking-indictment">action against the GRU officers</a> raised questions about whether anyone on this side of the Atlantic might be part of the conspiracy Special Counsel Robert Mueller has alleged against these Russians. To have the FBI and Mueller now unearthing Peter Smith’s financial transactions that may have involved people Smith believed to be Russian hackers raises a number of interesting questions about Mueller’s understanding of the scope of the conspiracy he has charged.</p>
<script src="https://donorbox.org/install-popup-button.js" type="text/javascript" defer="defer"></script><script>
<!--//--><![CDATA[// ><!--
window.DonorBox = { widgetLinkClassName: 'custom-dbox-popup' }
//--><!]]>
</script><p class="rtecenter"><a br="" class="twitter-timeline-link custom-dbox-popup" href="https://donorbox.org/support-lawfare" rel="nofollow" style="background:#006a71 no-repeat 37px center; color: #fff;text-decoration: none;font-family: Georgia;display: inline-block;font-size: 16px;padding: 15px 38px 15px 38px; -webkit-border-radius: 2px; -moz-border-radius: 2px; border-radius: 2px; box-shadow: 0 1px 0 0 #004a4f; text-shadow: 0 1px rgba(0, 0, 0, 0.3);" target="_blank"><strong><big>Support <i>Lawfare</i></big></strong></a></p>
<p>Before diving into those questions, a quick refresher:</p>
<p>Peter Smith, a longtime Republican donor and political operative, had actively opposed the Clintons since the 1990s, reportedly <a href="https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/jones040198.htm">paying</a> thousands of dollars to promote stories about Bill Clinton’s alleged extramarital affairs. <a href="https://www.wsj.com/articles/gop-operative-sought-clinton-emails-from-hackers-implied-a-connection-to-flynn-1498770851?mod=article_inline">According to</a> the Wall Street Journal, Smith began an effort to obtain Hillary Clinton’s emails during the 2016 presidential campaign, including from people he believed to be hackers with possible connections to the Russian government. Smith appeared to be particularly interested in 33,000 personal emails that Hillary Clinton allegedly deleted from her private server while serving as secretary of state. Ten days after his interview with the Journal, <a href="https://www.wsj.com/articles/gop-activist-who-sought-clinton-emails-killed-self-1500002994">Smith died in what authorities deemed a suicide</a>.</p>
<p>As part of his efforts, Smith reached out to cybersecurity expert and <em>Lawfare </em>contributing editor Matt Tait, who later wrote up an <a href="https://www.lawfareblog.com/time-i-got-recruited-collude-russians">account</a> of his interactions with Smith throughout the summer of 2016. Smith first approached Tait “around the time the DNC emails were dumped by Wikileaks,” Tait wrote, on the premise of discussing the “Clinton emails.” Smith told Tait that he had been contacted on the dark web by an individual “who claimed to have a copy of emails from Secretary Clinton’s private server” and that he now wanted help authenticating the emails. Tait emphasized that during their interactions, Smith had expressed no concern over the possibility that the individual contacting him on the dark web was a front for the Russian government.</p>
<p>The Buzzfeed report fleshes out these stories by following the money. While the Journal had reported previously that, by his own account, Smith had <a href="https://www.wsj.com/articles/gop-activist-who-sought-clinton-emails-cited-trump-campaign-officials-1498872923">received</a> “batches of emails” from hackers in the fall of 2016, we now know that he may have paid significant sums for those emails—something that Smith previously denied.</p>
<p>Smith presented those he contacted for help with a “recruiting document” dated Sept. 7, 2016. On Sept. 8, Smith reportedly transferred $9,500 out of a bank account set up to manage his search for Clinton’s emails to a personal account. From the latter account, Buzzfeed reports, Smith later withdrew $4,900 in cash. In December 2017, Smith’s bank received an FBI subpoena for information on the $9,500 withdrawal—prompting the bank to provide the government with information on 88 suspicious transactions by Smith, totaling around $140,000, between January 2016 and April 2017.</p>
<p>On its own, the Buzzfeed story might not be a groundbreaking development. But the article doesn’t stand alone. It comes in the wake of Mueller’s indictments of Russians involved in the Kremlin’s social media manipulation operation and, more importantly for present purposes, the hacking and leaking of Democratic Party materials during the 2016 campaign. In that context, it is highly significant that Buzzfeed reports that Smith’s efforts are actively being investigated by the special counsel’s team. Not only has Mueller’s team interviewed “people who Smith tried to recruit and others who worked on his operation to obtain Clinton’s emails,” it has also “tried to determine if [former national security adviser Michael] Flynn assisted Smith in his operation”—a question that Smith’s possible payments to hackers are “key” to answering, Buzzfeed writes.</p>
<p>So how do the facts reported in the Peter Smith stories, particularly Buzzfeed’s latest, line up with Mueller’s indictments? Mueller’s allegations describe, in detail, a complex Russian conspiracy to shape the 2016 U.S. elections—a conspiracy that involved an influence operation conducted on social media, the publication of hacked information, and outreach to a person in contact with the Trump campaign, <a href="https://www.washingtonpost.com/politics/charges-against-russian-intelligence-officers-intensify-spotlight-on-trump-adviser-roger-stone/2018/07/13/ba0d0caa-86bb-11e8-8553-a3ce89036c78_story.html?utm_term=.56ade559559f">reportedly</a> Roger Stone.</p>
<p>The Peter Smith stories—between the Journal’s reporting, Tait’s <em>Lawfare </em>account and the latest report from Buzzfeed—describe another plot, one that took shape on this side of the Atlantic. Whether this second plot amounts to a conspiracy is a legal question beyond the scope of this post, but it appears to have involved, at a minimum, an agreement among a number of actors to obtain illegally hacked emails, perhaps by buying them. Tait wrote that he specifically warned Smith that the person purporting to have Clinton’s emails was likely part of Russia’s campaign against the United States and that Smith didn’t care about the source, as long as he got the emails. So it’s certainly plausible that the Smith operation also involved a conspiracy of some sort.</p>
<p>The question is whether, and to what extent, these two plots, or conspiracies, intersected: If “collusion” did indeed take place around the hacking and leaking of Clinton campaign emails, was Smith the American, or <em>an </em>American, with whom the Russians were colluding? Or was Smith’s effort an entirely separate operation, interacting with the Russian conspiracy only glancingly? Or, more distant yet, was Smith’s operation entirely separate from Russian operatives and not interacting with them at all, whatever Smith might have thought?</p>
<p>Before diving into the specific potential interactions between the GRU indictment and the Peter Smith story, it is important to stress the many remaining unknowns. It is unclear, for example, whether Smith’s operation was directed at real emails or just materials that Smith <em>believed </em>to be Hillary Clinton’s emails. It is also unclear whether the people he thought he was dealing with were actually Russian operatives or whether they were just fraudsters taking an old man for a ride. Finally, the extent to which Smith’s effort was actually connected to the Trump campaign proper remains unclear too. According to the Journal, several of the people Smith reached out to said that Smith claimed to be working with Michael Flynn, then a senior adviser to candidate Donald Trump. (Flynn has consistently declined to comment on any relationship with Smith.) The Journal <a href="https://www.wsj.com/articles/gop-operative-sought-clinton-emails-from-hackers-implied-a-connection-to-flynn-1498770851?mod=article_inline">referenced</a> emails between Smith and his associates that show they considered Flynn to be their ally. The Journal also reported that the Sept. 7 document Smith prepared to tout his efforts <a href="https://www.wsj.com/articles/gop-activist-who-sought-clinton-emails-cited-trump-campaign-officials-1498872923">listed several prominent Trump campaign officials</a> as involved—Flynn, Steve Bannon, Kellyanne Conway and Sam Clovis—under the heading “Trump Campaign.” The paper reported, however, that Bannon said he had never met Smith. Conway admitted to knowing Smith but said she had not talked to him in years. Buzzfeed’s report that Mueller is looking into any assistance Flynn provided to Smith suggests that, at the very least, the special counsel takes seriously the possibility that Smith undertook his quest with the blessing of people associated with the Trump campaign. And, of course, Flynn is now a cooperating witness in the Mueller investigation.</p>
<p>The unknowns aside, it is worth considering the Peter Smith story alongside the facts alleged in the GRU indictment last month. After all, if Mueller believes those facts amount to criminal activity, he presumably believes that he might charge anyone who joined that agreement. So how closely related are these stories?</p>
<p>On the whole, Peter Smith’s efforts run in parallel to the GRU hacking and leaking efforts, taking place along the same timeframe. Although both involve attempts to obtain emails, the emails in question are different: The hacking indictment refers primarily to emails stolen from the Democratic National Committee and the personal email account of the Clinton campaign chairman, John Podesta, which were eventually released by Guccifer 2.0 and Wikileaks. According to both Tait and the Journal, Smith was focused, by contrast, on the 33,000 emails deleted from Clinton’s personal email server, which she used during her time as secretary of state. That server was the subject of an FBI investigation during the campaign.</p>
<p>There is one moment in which these parallel lines come close to converging. On July 27, 2016, Trump infamously declared at a campaign rally, “Russia, if you’re listening, I hope you’re able to find the 30,000 [sic] emails that are missing”—that is, the same batch of emails that so captivated Smith. According to the July 13 indictment, later that same day, Russian hackers “attempted ... to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office.”</p>
<p>It is unclear at this stage what emails the GRU hackers were seeking—if any in particular—in targeting the server used by Clinton’s personal office. Until July 27, the GRU efforts had focused on the DNC and the Democratic Congressional Campaign Committee, as well as a successful spearphishing campaign against Podesta. But the attack on Clinton’s personal office appears to be the first attempt against a domain not associated with the Democratic Party or the Clinton campaign. If the hackers <em>were </em>looking for those 33,000 emails, a third-party, private domain used by the candidate’s personal office would be a logical place to start.</p>
<p>There is no evidence that Donald Trump knew anything about Smith’s plan or that the GRU hackers were acting with either Trump’s comments or Smith in mind—or that they were looking for the deleted emails at all. But the moment of convergence on July 27 has the makings of a striking coincidence.</p>
<p>It is also possible that Flynn may be another point of convergence. While he is not mentioned in the GRU indictment, the Journal reported last year that U.S. intelligence officials had information that Russian hackers discussed how to transmit Clinton’s emails to Flynn through an unidentified intermediary. The Buzzfeed story noted this as well. The Journal also reported that Smith repeatedly mentioned Flynn; his consulting firm, Flynn Intel Group; and his son, Michael F. Flynn, who was chief of staff at the consulting firm, in his efforts to recruit researchers for the project. Again, the fact that Flynn is now cooperating with the Mueller investigation should give the special counsel an opportunity to assess his role.</p>
<p>Notably, however, the two plots describe very different interactions with Wikileaks. Mueller alleges that the GRU hackers had extensive interaction with Wikileaks (called “Organization 1” in the July indictment) and that they used that website, along with DCLeaks, to publish their trove of stolen emails. The Atlantic has reported that Wikileaks reached out to at least two figures associated with the Trump campaign—<a href="https://www.theatlantic.com/politics/archive/2017/11/the-secret-correspondence-between-donald-trump-jr-and-wikileaks/545738/">Donald Trump Jr.</a> and <a href="https://www.theatlantic.com/politics/archive/2018/02/roger-stones-secret-messages-with-wikileaks/554432/">Roger Stone</a>—about stolen emails. By contrast, Wikileaks did not publish the emails that Smith obtained from the hackers. It is possible that Wikileaks never received those emails. As Smith told the Journal, he asked the hackers to pass the trove of emails along to Wikileaks; he did not do so himself. It is possible then that Wikileaks did not publish those emails because it never had them in the first place. It is also possible that Wikileaks did not publish them because it found them to be fraudulent. </p>
<p>Many analysts believe that Mueller’s next step, having alleged both the social media conspiracy and the GRU conspiracy, will be to bring these conspiracies home and charge American figures thought to have participated in the wrongdoing he has outlined. The Buzzfeed story raises the question of how central the Peter Smith story will be to this next act—assuming it comes to pass. It is possible this is all just a sideshow, a weird tangent that took place alongside the main storylines of <em>L’Affaire Russe</em>. But it is also possible that it was more than that.</p>
<p>After all, wouldn’t it be odd if a group of Russians had conspired to steal Hillary Clinton’s emails and dump them into the American presidential campaign, while a group of Americans had conspired to get Hillary Clinton emails from Russian hackers to help Donald Trump get elected, and the two groups had never met?</p>
<p>To borrow from Henry Wadsworth Longfellow: Conspiracies “that pass in the night, and speak each other in passing / Only a signal shown and a distant voice in the darkness.”</p>
Fri, 10 Aug 2018 19:40:31 -0400Victoria Clark, Matthew Kahn, Mikhaila R. Fogel, Quinta Jurecic, Benjamin Wittes15671Today&#039;s Headlines and Commentary
https://www.lawfareblog.com/todays-headlines-and-commentary-1612
<p><strong>Prosecutors in the Manafort trial are expected to rest their case today, </strong><a href="https://www.apnews.com/45492a4fd81d431188d1470edba4bd9f/Prosecutors-wrapping-up-case-at-Manafort-fraud-trial">according to</a> the Associated Press. The trial enters its ninth day on Friday. So far, the prosecution has called over 20 witnesses, including Rick Gates—Manafort’s deputy in the Trump presidential campaign—and Heather Washkuhn—Manafort’s bookkeeper—and submitted over 500 pieces of evidence. Prosecutors have also contended with multiple scoldings from Judge T.S. Ellis, who has criticized the prosecution multiple times for such varied causes as presenting too much evidence about Manafort’s personal expenditures and making facial expressions that might influence the jury.<br /><strong>Eleven top-secret cables detail the use of enhanced interrogation techniques, including waterboarding, at a Thailand black site that CIA director Gina Haspel oversaw,</strong> <a href="https://www.nytimes.com/2018/08/10/us/politics/waterboarding-gina-haspel-cia-prison.html">reports</a> the New York Times. The cables, which were obtained in a Freedom of Information Act lawsuit filed by the National Security Archive, were all from a period between October 2002, when Haspel arrived to oversee the site, and December 2002, when the site was shut down. Most of the information contained in the cables concerns the treatment of Abd al-Rahim al-Nashiri, a Saudi national accused of orchestrating the bombing of the USS Cole in 2000. The cables describe how Nashiri was subjected to torture techniques, including sleep deprivation, wall-slamming, and waterboarding. They also offer some evidence that the use of enhanced interrogation techniques garnered no new intelligence from Nashiri. The CIA did not comment on the cables’ release.<br /><strong>South Korean customs officials accused three South Koreans of illegally importing coal and iron from North Korea, </strong><a href="https://www.wsj.com/articles/sanctions-busters-smuggled-north-korean-coal-iron-to-the-south-via-russia-1533895310">reports</a> the Wall Street Journal. The individuals allegedly imported almost $6 million worth of coal and iron from North Korea via Russian ports using a shell company in Hong Kong. The accusations, if true, suggest that U.N. sanctions against North Korea have been seriously undermined. The sanctions have contributed to the largest drop in North Korea’s gross domestic product in two decades. South Korea’s customs agency recommended that the individuals and the companies they run be indicted on charges of smuggling, illicit importation and forgery.<br /><strong>Afghan and U.S. forces resisted a Taliban siege in the eastern city of Ghazni</strong>, <a href="https://www.wsj.com/articles/taliban-fighters-storm-afghan-provincial-capital-1533878284">according to</a> the Journal. The siege, which comes ahead of a possible ceasefire later this month, lasted over six hours until Afghan security forces, backed by U.S. airstrikes, beat back the Taliban forces. Sixteen people were killed in the assault, and 40 were hospitalized. Ghazni is a strategically important city as it lies on a highway that leads to Kabul, 80 miles to the northwest.<br /><strong>Myanmar rejected the Hague’s attempt to investigate the country’s use of military force against Rohingya Muslims</strong>, <a href="http://v">reports</a> the AP. Myanmar’s leader, Aung San Suu Kyi, released a statement claiming that because Myanmar is not a party to the Rome Statute, which created the International Criminal Court, the body has no jurisdiction in Myanmar and that the court’s efforts are “meritless and should be dismissed.” Critics of Myanmar’s treatment of the Rohingya, including U.N. experts, believe the violence constitutes ethnic cleansing or possibly genocide. The government of Myanmar claims it is conducting counterinsurgency operations in response to attacks by Rohingya militants. Documentary evidence, survivor testimony, and eyewitness accounts have revealed that Myanmar’s army committed scores of atrocities, including beatings, murders and organized rapes of Rohingya citizens, as well as the burning of thousands of homes belonging to Rohingya.<br /><strong>The U.N.’s anti-torture committee criticized Russia for its repeated torture of prisoners after a video of Russian guards beating a prisoner named Yevgeny Makarov was released, </strong><a href="https://www.reuters.com/article/us-russia-rights-un/russia-must-rein-in-torture-prosecute-prison-guards-un-idUSKBN1KV137">according to</a> Reuters. The video, published by the Novaya Gazeta, details a June 2017 incident in which guards used truncheons to repeatedly beat Makarov. The video was published one year after the incident, after which the Russian government arrested five officials and fired twelve others. The U.N. panel also criticized Russia for its high rate of prison deaths, its involuntary psychiatric institutionalizations of people in Crimea, and its torture of political opponents.<br /><strong>Israel and Hamas exchanged rocket and missile fire on Thursday for the first time since 2014, </strong><a href="https://www.nytimes.com/2018/08/09/world/middleeast/israel-gaza-ceasefire-war.html">reports</a> the Times. Hamas rockets targeted Beersheba while Israeli missiles targeted Gaza City. The attacks came just hours before a ceasefire went into effect at midnight on Thursday. Some analysts speculated that the attacks were attempts by both sides to improve their negotiating positions for a longer truce. Twenty-five people were injured during the attacks.<br /><strong>President Trump doubled tariffs on Turkish steel and aluminum,</strong> <a href="https://www.washingtonpost.com/business/2018/08/10/trump-takes-aim-turkey-announcing-doubling-steel-aluminum-tariffs-effort-punish-country/?utm_term=.859201703411">according to</a> the Washington Post. There are now 20 percent tariffs on Turkish aluminum and 50 percent tariffs on Turkish steel. In the tweet announcing the tariffs, Trump <a href="https://twitter.com/realDonaldTrump/status/1027899286586109955?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1027899286586109955&amp;ref_url=https%3A%2F%2Fwww.wsj.com%2Farticles%2Ftrump-vows-to-double-metals-tariffs-on-turkey-as-dispute-escalates-over-detained-american-1533906681">referenced</a> the weakening lira and bad relations with Turkey as motivations for his decision. Trump’s announcement came after U.S. officials met with a Turkish delegation on Wednesday to discuss American pastor Andrew Brunson, who has been in Turkish custody since 2016. Brunson, however, was not mentioned in Trump’s announcement.</p>
<p align="center"><strong>ICYMI: Yesterday on <em>Lawfare</em></strong></p>
<p>Steve Slick <a href="https://www.lawfareblog.com/quis-custodiet-ipsos-custodes">reviewed</a> Loch Johnson’s book “Spy Watching: Intelligence Accountability in the United States.”<br />
Robert Chesney and Steve Vladeck <a href="https://www.lawfareblog.com/national-security-law-podcast-party-its-june-28-2004">hosted</a> the <em>National Security Law Podcast</em>, in which they discussed the Guantanamo detention case <em>Hamdi v. Rumsfeld.</em><br /><a href="mailto:victoria.clark@lawfareblog.com"><em>Email</em></a><em> the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and Facebook for additional commentary on these issues. Sign up to receive Lawfare in your inbox. Visit our Events Calendar to learn about upcoming national security events, and check out relevant job openings on our Job Board.</em></p>
Fri, 10 Aug 2018 16:59:15 -0400Hannah Kris15669Document: Cables Describe Use of Enhanced Interrogation Techniques at Thailand Black Site Overseen by Haspel
https://www.lawfareblog.com/document-cables-describe-use-enhanced-interrogation-techniques-thailand-black-site-overseen-haspel
<p>Sixteen declassified cables were released on Friday that detail the enhanced interrogation techniques used at a CIA black site in Thailand during the time it was overseen by CIA director Gina Haspel in 2002. The cables focus on the interrogation of Abd al-Rahim al-Nashiri, a Saudi national who is accused of planning the 2000 bombing of the USS Cole; they describe the use of interrogation techniques including waterboarding, sleep deprivation and wall-slamming. The cables were obtained through a Freedom of Information lawsuit filed by the National Security Archive. The documents are available in full below:</p>
<p><a href="https://www.documentcloud.org/documents/4741586-Haspel1.html">Document one: </a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741586-Haspel1" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741586-Haspel1.js", { responsive: true, container: "#DV-viewer-4741586-Haspel1" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741586/Haspel1.pdf">Haspel1 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741586/Haspel1.txt">Haspel1 (Text)</a></noscript></div>
<p> </p>
<p><a href="https://www.documentcloud.org/documents/4741587-Haspel2.html">Document two: </a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741587-Haspel2" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741587-Haspel2.js", { responsive: true, container: "#DV-viewer-4741587-Haspel2" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741587/Haspel2.pdf">Haspel2 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741587/Haspel2.txt">Haspel2 (Text)</a></noscript></div>
<p> </p>
<p><a href="https://www.documentcloud.org/documents/4741588-Haspel3.html">Document three: </a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741588-Haspel3" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741588-Haspel3.js", { responsive: true, container: "#DV-viewer-4741588-Haspel3" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741588/Haspel3.pdf">Haspel3 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741588/Haspel3.txt">Haspel3 (Text)</a></noscript></div>
<p> </p>
<p><a href="https://www.documentcloud.org/documents/4741589-Haspel4.html">Document four:</a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741589-Haspel4" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741589-Haspel4.js", { responsive: true, container: "#DV-viewer-4741589-Haspel4" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://www.documentcloud.org/documents/4741589/Haspel4.pdf">Haspel4 (PDF)</a><br /><a href="https://www.documentcloud.org/documents/4741589/Haspel4.txt">Haspel4 (Text)</a></noscript></div>
<p> </p>
<p><a href="https://www.documentcloud.org/documents/4741590-Haspel5.html">Document five:</a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741590-Haspel5" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741590-Haspel5.js", { responsive: true, container: "#DV-viewer-4741590-Haspel5" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741590/Haspel5.pdf">Haspel5 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741590/Haspel5.txt">Haspel5 (Text)</a></noscript></div>
<p> </p>
<p><a href="https://www.documentcloud.org/documents/4741591-Haspel6.html">Document six: </a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741591-Haspel6" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741591-Haspel6.js", { responsive: true, container: "#DV-viewer-4741591-Haspel6" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741591/Haspel6.pdf">Haspel6 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741591/Haspel6.txt">Haspel6 (Text)</a></noscript></div>
<p> </p>
<p><a href="https://www.documentcloud.org/documents/4741592-Haspel7.html">Document seven:</a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741592-Haspel7" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741592-Haspel7.js", { responsive: true, container: "#DV-viewer-4741592-Haspel7" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741592/Haspel7.pdf">Haspel7 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741592/Haspel7.txt">Haspel7 (Text)</a></noscript></div>
<p> </p>
<p><a href="https://www.documentcloud.org/documents/4741594-Haspel8.html">Document eight:</a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741594-Haspel8" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741594-Haspel8.js", { responsive: true, container: "#DV-viewer-4741594-Haspel8" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741594/Haspel8.pdf">Haspel8 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741594/Haspel8.txt">Haspel8 (Text)</a></noscript></div>
<p> </p>
<p><a href="https://www.documentcloud.org/documents/4741595-Haspel9.html">Document nine:</a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741595-Haspel9" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741595-Haspel9.js", { responsive: true, container: "#DV-viewer-4741595-Haspel9" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741595/Haspel9.pdf">Haspel9 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741595/Haspel9.txt">Haspel9 (Text)</a></noscript></div>
<p> </p>
<p><a href="https://www.documentcloud.org/documents/4741596-Haspel10.html">Document ten:</a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741596-Haspel10" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741596-Haspel10.js", { responsive: true, container: "#DV-viewer-4741596-Haspel10" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741596/Haspel10.pdf">Haspel10 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741596/Haspel10.txt">Haspel10 (Text)</a></noscript></div>
<p> </p>
<p><a href="https://www.documentcloud.org/documents/4741597-Haspel11.html">Document eleven:</a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741597-Haspel11" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741597-Haspel11.js", { responsive: true, container: "#DV-viewer-4741597-Haspel11" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741597/Haspel11.pdf">Haspel11 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741597/Haspel11.txt">Haspel11 (Text)</a></noscript></div>
<p> </p>
<p><a href="https://www.documentcloud.org/documents/4741598-Haspel12.html">Document twelve:</a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741598-Haspel12" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741598-Haspel12.js", { responsive: true, container: "#DV-viewer-4741598-Haspel12" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741598/Haspel12.pdf">Haspel12 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741598/Haspel12.txt">Haspel12 (Text)</a></noscript></div>
<p> </p>
<p><a href="https://www.documentcloud.org/documents/4741599-Haspel13.html">Document thirteen:</a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741599-Haspel13" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741599-Haspel13.js", { responsive: true, container: "#DV-viewer-4741599-Haspel13" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741599/Haspel13.pdf">Haspel13 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741599/Haspel13.txt">Haspel13 (Text)</a></noscript></div>
<p> </p>
<p><a href="https://www.documentcloud.org/documents/4741600-Haspel14.html">Document fourteen:</a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741600-Haspel14" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741600-Haspel14.js", { responsive: true, container: "#DV-viewer-4741600-Haspel14" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741600/Haspel14.pdf">Haspel14 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741600/Haspel14.txt">Haspel14 (Text)</a></noscript></div>
<p> </p>
<p><a href="http://&lt;div id=&quot;DV-viewer-4741600-Haspel14&quot; class=&quot;DC-embed DC-embed-document DV-container&quot;&gt;&lt;/div&gt;&lt;script src=&quot;//assets.documentcloud.org/viewer/loader.js&quot;&gt;&lt;/script&gt;&lt;script&gt; DV.load(&quot;https://www.documentcloud.org/documents/4741600-Haspel14.js&quot;, { responsive: true, container: &quot;#DV-viewer-4741600-Haspel14&quot; });&lt;/script&gt;&lt;noscript&gt; &lt;a href=&quot;https://assets.documentcloud.org/documents/4741600/Haspel14.pdf&quot;&gt;Haspel14 (PDF)&lt;/a&gt; &lt;br /&gt; &lt;a href=&quot;https://assets.documentcloud.org/documents/4741600/Haspel14.txt&quot;&gt;Haspel14 (Text)&lt;/a&gt;&lt;/noscript&gt;">Document fifteen:</a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741601-Haspel15" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741601-Haspel15.js", { responsive: true, container: "#DV-viewer-4741601-Haspel15" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741601/Haspel15.pdf">Haspel15 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741601/Haspel15.txt">Haspel15 (Text)</a></noscript></div>
<p> </p>
<p><a href="http://&lt;div id=&quot;DV-viewer-4741601-Haspel15&quot; class=&quot;DC-embed DC-embed-document DV-container&quot;&gt;&lt;/div&gt;&lt;script src=&quot;//assets.documentcloud.org/viewer/loader.js&quot;&gt;&lt;/script&gt;&lt;script&gt; DV.load(&quot;https://www.documentcloud.org/documents/4741601-Haspel15.js&quot;, { responsive: true, container: &quot;#DV-viewer-4741601-Haspel15&quot; });&lt;/script&gt;&lt;noscript&gt; &lt;a href=&quot;https://assets.documentcloud.org/documents/4741601/Haspel15.pdf&quot;&gt;Haspel15 (PDF)&lt;/a&gt; &lt;br /&gt; &lt;a href=&quot;https://assets.documentcloud.org/documents/4741601/Haspel15.txt&quot;&gt;Haspel15 (Text)&lt;/a&gt;&lt;/noscript&gt;">Document sixteen:</a></p>
<p> </p>
<div class="media_embed">
<div class="DC-embed DC-embed-document DV-container" height="" id="DV-viewer-4741602-Haspel16" width=""> </div>
<script height="" src="//assets.documentcloud.org/viewer/loader.js" width=""></script><script height="" width="">
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741602-Haspel16.js", { responsive: true, container: "#DV-viewer-4741602-Haspel16" });
//--><!]]>
</script><p></p><noscript height="" width=""><a href="https://assets.documentcloud.org/documents/4741602/Haspel16.pdf">Haspel16 (PDF)</a><br /><a href="https://assets.documentcloud.org/documents/4741602/Haspel16.txt">Haspel16 (Text)</a></noscript></div>
<p> </p>
Fri, 10 Aug 2018 14:58:53 -0400Victoria Clark15668Tech Giants at the Crossroads: A Modest Proposal
https://www.lawfareblog.com/tech-giants-crossroads-modest-proposal
<blockquote><p>Major technology and social-media companies— think Facebook, Apple, Microsoft, and Google— wield tremendous power. Given their reach, their financial heft, their importance to vast swaths of customers dependent on their goods, services, and platforms, and their ability to influence (if not altogether dictate) transnational public policy, these firms often look and act the part of proprietors, stewards, and even governors of digital public squares.</p>
<p>These firms do so right now at a moment of great political, economic, and technological flux and unease. Today, questions and concerns are regularly voiced over the tech giants’ market share; over the ways they run their various digital platforms; over their editorial policies and ability to shape the news; and over their policing of (or failure to police) individuals and groups who use the firms’ goods, services, and platforms.</p>
<p>Questions and concerns likewise surround these <a href="https://www.hoover.org/research/tech-giants-crossroads">tech giants’ </a>role in supporting US intelligence, law enforcement, and diplomatic operations at a moment when some of those operations are themselves subject to considerable debate and scrutiny.</p>
<p>These firms thus find themselves at the center of two critical, vexing, and ultimately related conversations. First, there is what I’ll call the digital public square conversation: millions of citizen-consumers rely on technology and social-media companies’ goods, services, and fair and stable platforms to remain socially, politically, and economically engaged and empowered. Second, there is the deputization conversation: many of those very same technology and social-media companies— so powerful in their dealings with the general public— are expected, pressured, and often obligated to share their data with government agencies, to facilitate or intensify state surveillance over citizen-consumers, and even to advance the state’s domestic or foreign policy agenda.</p>
</blockquote>
<p style=" margin: 12px auto 6px auto; font-family: Helvetica,Arial,Sans-serif; font-style: normal; font-variant: normal; font-weight: normal; font-size: 14px; line-height: normal; font-size-adjust: none; font-stretch: normal; -x-system-font: none; display: block;"><a href="https://www.scribd.com/document/385044782/Tech-Giants-at-the-Crossroads-A-Modest-Proposal#from_embed" style="text-decoration: underline;" title="View Tech Giants at the Crossroads: A Modest Proposal on Scribd">Tech Giants at the Crossroads: A Modest Proposal</a> by <a href="https://www.scribd.com/HooverInstitution#from_embed" style="text-decoration: underline;" title="View Hoover Institution's profile on Scribd">Hoover Institution</a> on Scribd</p>
<p><iframe class="scribd_iframe_embed" data-aspect-ratio="0.7729220222793488" data-auto-height="false" frameborder="0" height="600" id="doc_79382" scrolling="no" src="https://www.scribd.com/embeds/385044782/content?start_page=1&amp;view_mode=scroll&amp;access_key=key-E1MLAgiwOgyzbDZqgJED&amp;show_recommendations=true" title="Tech Giants at the Crossroads: A Modest Proposal" width="100%"></iframe></p>
Fri, 10 Aug 2018 13:15:13 -0400Jon D. Michaels15368An Intelligence Reserve Corps to Counter Terrorist Use of the Internet
https://www.lawfareblog.com/intelligence-reserve-corps-counter-terrorist-use-internet
<blockquote><p>Never before in history have terrorists had such easy access to the minds and eyeballs of millions,” declared one journalistic account of the Islamic State’s propaganda machine and proficient use of Twitter, Facebook, bots, and other modern means of getting its message out. Such views that the group’s “mastery of modern digital tools” has transformed terrorism are commonplace and, though usually presented breathlessly, contain some basic truths. Successful terrorist groups are good communicators and they employ the technology of their times. Fighting terrorism today thus requires fighting terrorism on the Internet and otherwise countering the use of advanced communications technologies. President Trump himself stressed this in a tweet after a 2017 terrorist attack in London: “Loser terrorists must be dealt with in a much tougher manner. The internet is their main recruitment tool which we must cut off &amp; use better!” Terrorists are only one dangerous actor on the Internet—and the one this paper focuses on—but other dangers ranging from hostile state intelligence services to criminal groups are also lurking. The above journalist’s quote could also apply to Russian disinformation, sophisticated criminal phishing attempts, and other malicious uses of the Internet.</p>
<p>Technology companies have devised an array of innovative approaches to counter terrorist use of the Internet, ranging from using clever algorithms to disrupt extremist accounts to hiring large numbers of skilled personnel to monitor suspicious content. Despite these measures, the US and European governments have considered more regulation. One area that is largely neglected, however, is government personnel policy, a topic that usually produces yawns in the policy world and is beyond the private sector’s reach. The US government faces difficulties when malefactors exploit the Internet in part because its personnel are often poorly equipped to handle cutting-edge technological problems. Compared with the private sector, government employees often are poorly paid, while technology companies are suspicious of government— or want to be seen as such by many of their customers. Many companies are multinational and must manage competing goals of different governments around the world and an international workforce. There is often a time-lag issue: the government moves slowly, devoting resources and training to problems as they become acute. In the short- and medium-term, however, the government often lacks capacity to manage a new challenge. This is particularly likely with technological challenges, as the pace of change is so rapid, and this allows terrorists and other bad actors freedom to exploit new developments as governments struggle to catch up.</p>
<p>One way to mitigate this personnel problem is to expand partnerships outside government, drawing on individuals in the private sector where much of the expertise lies. This paper proposes an Intelligence Reserve Corps modeled loosely after military reserve programs. The corps would bring in part-time government personnel with a technical background who would expand the range of skills available to government and increase private sector awareness of government needs. It would mitigate some (though hardly all) of the problems the government faces, including helping make up for salary disparities, strengthening surge and niche capacities, and improving the government’s short-term responsiveness, among other benefits. Many companies, however, would not support participation, and cultural and other differences are likely to limit the extent of progress. </p>
<p>This <a href="https://assets.documentcloud.org/documents/4741288/Byman-Aegis.pdf">paper</a> proceeds as follows. First, it examines some of the ways in which terrorist groups use the Internet, focusing on the Islamic State in particular, and the limits and problems they have had. Second, it looks at several of the historical problems the US government has had in stopping this use and at the general issues that are likely to plague future efforts regarding terrorist use of new technologies. Finally, the paper details some of the parameters of an Intelligence Reserve Corps, describing its benefits and its limits.</p>
</blockquote>
<div class="DC-embed DC-embed-document DV-container" id="DV-viewer-4741288-Byman-Aegis"> </div>
<script src="//assets.documentcloud.org/viewer/loader.js"></script><script>
<!--//--><![CDATA[// ><!--
DV.load("https://www.documentcloud.org/documents/4741288-Byman-Aegis.js", { responsive: true, container: "#DV-viewer-4741288-Byman-Aegis" });
//--><!]]>
</script><p></p><noscript> <a href="https://assets.documentcloud.org/documents/4741288/Byman-Aegis.pdf">Byman Aegis (PDF)</a> <br /><a href="https://assets.documentcloud.org/documents/4741288/Byman-Aegis.txt">Byman Aegis (Text)</a></noscript>
Fri, 10 Aug 2018 10:06:17 -0400Daniel Byman15441Today&#039;s Headlines and Commentary
https://www.lawfareblog.com/todays-headlines-and-commentary-1611
<p><strong>The U.S. imposed new sanctions on Russia in response to the poisoning of a former Russian spy and his daughter earlier this year in the United Kingdom,</strong> <a href="https://www.bbc.com/news/world-europe-45126207">reports</a> BBC. A State Department spokesperson said on Wednesday that the United States concluded that Russia “used chemical weapons or biological weapons in violation of international law, or has used lethal chemical or biological weapons against its own nationals.” Sergei Skripal and his daughter Yulia were exposed the nerve agent Novichok in the British city of Salisbury in March. Both have since recovered, but two other British nationals—Dawn Sturgess and Charlie Rowley—<a href="https://www.bbc.com/news/uk-44721558">fell ill</a> after being exposed to Novichok in June. Sturgess passed away as a result of the exposure on July 9. The Russian ruble took a tumble after the sanctions were announced, dropping to its lowest level since November 2016.</p>
<p><strong>An airstrike by the Saudi-led coalition in Yemen hit a bus in a crowded market area, killing dozens of Yemeni children and injuring even more,</strong> <a href="https://www.washingtonpost.com/world/middle_east/airstrike-by-us-ally-on-bus-carrying-yemeni-children-kills-and-wounds-scores/2018/08/09/c047e55e-bbc6-42ff-a5db-4bd2e629f0b6_story.html?utm_term=.016119da9bc1">according to</a> the Washington Post. The coalition has launched a string of airstrikes in recent weeks in its fight against Houthi rebels. The head of the Red Cross delegation in Yemen reported that “scores [were] killed, even more injured, most under the age of 10.” The coalition released a statement on Thursday, saying the airstrike was “a legitimate military action.”</p>
<p><strong>President Trump’s legal team rejected the terms of special counsel Robert Mueller’s offer to sit for an interview, </strong><a href="https://www.wsj.com/articles/trump-lawyers-respond-to-muellers-terms-for-interview-with-the-president-1533751618">reports</a> the Wall Street Journal. Instead, the president’s lawyers proposed a counteroffer that limited the scope of questions Mueller could ask related to obstruction of justice. The counteroffer did express the president’s willingness to discuss any alleged collusion with Russia. The news comes as negotiations over an interview with Trump enter their ninth month. </p>
<p><strong>The White House is in the process of writing an executive order that would allow the president to sanction states and foreign actors that interfere in U.S. elections,</strong> <a href="https://www.washingtonpost.com/world/national-security/white-house-drafting-sanctions-order-to-punish-foreign-interference-in-us-elections/2018/08/08/ef0939f2-9b0a-11e8-843b-36e177f3081c_story.html?utm_term=.202f57a0ea7b">according to</a> Post reporters who reviewed a draft copy of the document. The order lists a series of offenses that would qualify as interference, including “[i]nternet-based disinformation efforts.” The majority of the sanctions detailed in the order would be discretionary, allowing the president to decide which entities should be sanctioned and to what extent. Shane Harris, one of the Post reporters who saw the document, <a href="https://twitter.com/shaneharris/status/1027326942893109250">noted</a> that the “draft order includes language apparently designed not to single out Russia for its 2016 interference.”</p>
<p><strong>WikiLeaks founder Julian Assange may accept an offer to appear before the Senate intelligence committee, according to a statement from his lawyer,</strong> <a href="https://www.reuters.com/article/us-britain-ecuador-assange/assange-considering-offer-to-appear-before-u-s-senate-committee-idUSKBN1KU1MR">reports</a> Reuters. Assange has lived in Ecuador’s embassy in London since 2012 in order to avoid extradition. The intelligence committee asked Assange to testify as part of the larger investigation into Russian interference in the 2016 presidential election. Assange’s lawyer said that her client was considering the offer, but his protection must be guaranteed.</p>
<p><strong>The American Psychological Association voted against a proposal that would allow members to treat individuals detained at sites that fail to comply with international human rights laws, such as Guantanamo Bay,</strong> <a href="https://www.nytimes.com/2018/08/09/health/interrogation-psychologists-guantanamo.html?rref=collection%2Fsectioncollection%2Fworld&amp;action=click&amp;contentCollection=world&amp;region=stream&amp;module=stream_unit&amp;version=latest&amp;contentPlacement=1&amp;pgtype=sectionfront">according to</a> the New York Times. The vote followed a contentious debate that sought to overturn a 2015 policy that prohibits military psychologists from working at certain detention facilities.</p>
<p align="center"><strong>ICYMI: Yesterday on <em>Lawfare</em></strong></p>
<p>Evelyn Douek <a href="https://www.lawfareblog.com/transatlantic-techlash-continues-uk-and-us-lawmakers-release-proposals-regulation">analyzed</a> two proposals to regulate technology companies that were recently released by U.K. and U.S. lawmakers.</p>
<p>Wenqing Zhao and David Stanton <a href="https://www.lawfareblog.com/sinotech-google-plans-opening-china-and-ndaa-lets-zte-deal-hook">posted</a> the latest <em>SinoTech </em>column on Google’s plans reenter the Chinese market and the implications in the NDAA for ZTE.</p>
<p>Jen Patja Howell <a href="https://www.lawfareblog.com/rational-security-ask-us-anything-edition">posted</a> this week’s <em>Rational Security</em>—the ‘Ask Us Anything’ Edition—in which Quinta Jurecic, Shannon Togawa Mercer, Tamara Cofman Wittes and Benjamin Wittes answered listener questions submitted on Twitter.</p>
<p><a href="mailto:%20victoria.clark@lawfareblog.com"><em>Email</em></a><em> the Roundup Team noteworthy law and security-related articles to include, and follow us on Twitter and </em><a href="http://www.facebook.com/Lawfareblog"><em>Facebook</em></a><em> for additional commentary on these issues. </em><a href="http://www.lawfareblog.com/lawfare-email-subscriptions/"><em>Sign up</em></a><em> to receive Lawfare in your inbox. Visit our </em><a href="http://www.lawfareblog.com/events/"><em>Events Calendar</em></a><em> to learn about upcoming national security events, and check out relevant job openings on our </em><a href="http://www.lawfareblog.com/the-lawfare-job-board/"><em>Job Board</em></a>.</p>
Thu, 09 Aug 2018 15:10:13 -0400Victoria Clark15666The National Security Law Podcast: Party Like It’s June 28, 2004!
https://www.lawfareblog.com/national-security-law-podcast-party-its-june-28-2004
<p>It had to happen sooner or later: an actual slow week for national security law! Ugh! Well, time to make lemonade from the lemons. A slow week in NSL news means that we can take a run at a format that we originally expected to be a mainstay for the show: a deep-dive into a single significant development.</p>
<p>In this case, we’re going back to June 28, 2004, and the Supreme Court’s decision in <a href="https://www.law.cornell.edu/supct/html/03-6696.ZO.html"><em>Hamdi v. Rumsfeld</em></a>. It was a titanic ruling relating to military detention authority, the AUMF, citizenship, due process, and more. In some respects, it was a huge win for the government. In others, it was a huge defeat. We unpack it all, along with a great deal of historical context, over the course of the hour.</p>
<p>And for dessert? Frivolity circa 2004, of course! Buckle up for a stroll down memory lane with the top movies, tv shows, books, and songs of 2004.</p>
<p></p><div class="media_embed" height="30px" width="320px">
<iframe frameborder="0" height="30px" scrolling="no" src="https://www.nationalsecuritylawpodcast.com/?powerpress_embed=2181-podcast&amp;powerpress_player=mediaelement-audio" width="320px"></iframe></div>
Thu, 09 Aug 2018 13:55:29 -0400Robert Chesney, Steve Vladeck15665